Opinion
Nos. 2019-03131 2019-03132 Index No. 606051/15
07-19-2023
HSBC Bank USA, N.A., respondent, v. Mildred J. Michalczyk, appellant, et al., defendants.
Mildred J. Michalczyk, East Farmingdale, NY, appellant pro se. Cohn & Roth, LLC, Mineola, NY (Michael C. Nayar of counsel), for respondent.
Mildred J. Michalczyk, East Farmingdale, NY, appellant pro se.
Cohn & Roth, LLC, Mineola, NY (Michael C. Nayar of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Mildred J. Michalczyk appeals from two orders of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), both dated January 8, 2019. The first order, insofar as appealed from, granted the plaintiff's motion for leave to discontinue the action without prejudice and to cancel and discharge the notice of pendency, and denied those branches of the cross-motion of the defendant Mildred J. Michalczyk which were to discontinue the action with prejudice and to impose sanctions. The second order, insofar as appealed from, in effect, granted the same relief to the plaintiff, discontinued the action without prejudice, and directed the cancellation and discharge of the notice of pendency.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff commenced this action against the defendant Mildred J. Michalczyk (hereinafter the borrower), among others, to foreclose a mortgage on certain residential property in East Farmingdale. The borrower interposed an answer, generally denying the allegations in the complaint and asserting various affirmative defenses and counterclaims seeking to rescind the loan agreement and to recover damages, inter alia, for breach of contract, failure to negotiate in good faith, and violations of the Fair Debt Collection Practices Act and the Truth in Lending Act. In or about August 2018, the plaintiff moved for leave to discontinue the action without prejudice and to cancel and discharge the notice of pendency. The borrower opposed the motion and cross-moved to (1) sever her counterclaims; (2) impose sanctions against the plaintiff pursuant to CPLR 3408; (3) impose sanctions against the plaintiff, its counsel, and its former counsel, separately, pursuant to 22 NYCRR 130-1.1; and (4) discontinue the action with prejudice. The plaintiff opposed the cross-motion. In an order dated January 8, 2019, the Supreme Court, among other things, granted the plaintiff's motion for leave to discontinue the action without prejudice and to cancel and discharge the notice of pendency, and denied those branches of the borrower's cross-motion which were to discontinue the action with prejudice and to impose sanctions. In a second order, also dated January 8, 2019, the court, inter alia, discontinued the action without prejudice and directed the cancellation and discharge of the notice of pendency. The borrower appeals.
The determination of a motion pursuant to CPLR 3217(b) for leave to discontinue an action without prejudice is within the sound discretion of the court (see Tucker v Tucker, 55 N.Y.2d 378, 383; Aurora Loan Servs., LLC v Hunte, 189 A.D.3d 1525, 1526). "Generally such motions should be granted 'unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results'" (Haughey v Kindschuh, 176 A.D.3d 785, 786, quoting Marinelli v Wimmer, 139 A.D.3d 914, 915). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to discontinue the action without prejudice, as there was no showing of substantial prejudice or other improper results (see Nationstar Mtge., LLC v Dalton, 201 A.D.3d 726, 727; Chase Home Fin., LLC v Sulton, 185 A.D.3d 646, 647; Federal Natl. Mtge. Assn. v Biggs, 172 A.D.3d 1322, 1323).
The borrower's remaining contentions are without merit.
BRATHWAITE NELSON, J.P., IANNACCI, CHRISTOPHER and WARHIT, JJ., concur.