Opinion
2014-04-2
NEW YORK MORTGAGE TRUST, INC., appellant, v. Adem DASDEMIR, et al., respondents, et al., defendants.
Deutsch & Schneider, LLP, Glandale, N.Y. (Doris Barkhordar of counsel), for appellant. Kenneth S. Pelsinger, Levittown, N.Y., for respondents.
Deutsch & Schneider, LLP, Glandale, N.Y. (Doris Barkhordar of counsel), for appellant. Kenneth S. Pelsinger, Levittown, N.Y., for respondents.
, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Schack, J.), dated December 19, 2012, as, upon granting its motion pursuant to CPLR 3217(b) to discontinue the action, did so “with prejudice.”
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the discontinuance of the action is “without prejudice.”
In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice ( seeCPLR 3217[c]; Tucker v. Tucker, 55 N.Y.2d 378, 383–384, 449 N.Y.S.2d 683, 434 N.E.2d 1050;American Tr. Ins. Co. v. Roberson, 114 A.D.3d 821, 980 N.Y.S.2d 778;Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d 881, 883, 969 N.Y.S.2d 67;Blackwell v. Mikevin Mgt. III, LLC, 88 A.D.3d 836, 837, 931 N.Y.S.2d 116). Here, there was no showing of any such special circumstances. Contrary to the respondents' contention, there is no evidence in the record that the action was settled, discontinued, or dismissed on the merits ( see generally Matter of AutoOne Ins. Co. v. Valentine, 72 A.D.3d 953, 955, 899 N.Y.S.2d 354). Rather, it is undisputed that the settlement reached by the parties was a forbearance agreement. Accordingly, the action should have been discontinued without prejudice.