Opinion
2022–01785 Index No. 63724/14
11-08-2023
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, respondent, v. Cathy E. STARR–KLEIN, appellant, et al., defendants.
Abrams Fensterman, LLP, Lake Success, NY (Christopher A. Gorman of counsel), for appellant. Woods Oviatt Gilman LLP, Rochester, NY (Cassie T. Doran of counsel), for respondent.
Abrams Fensterman, LLP, Lake Success, NY (Christopher A. Gorman of counsel), for appellant.
Woods Oviatt Gilman LLP, Rochester, NY (Cassie T. Doran of counsel), for respondent.
ANGELA G. IANNACCI, J.P., WILLIAM G. FORD, LILLIAN WAN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Cathy E. Starr–Klein appeals from an order of the Supreme Court, Suffolk County (Betsy Heckman Torres, J.), dated February 16, 2022. The order granted the plaintiff's motion for leave to substitute its counsel of record and to discontinue the action without prejudice. ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant Cathy E. Starr–Klein (hereinafter the defendant), among others, to foreclose a consolidated mortgage on certain property located in Amityville. After the defendant executed a loan modification agreement, effectively settling the litigation, the plaintiff moved for leave to substitute its counsel of record and to discontinue the action without prejudice. Annexed to the motion was an affirmation of Yimell M. Suarez Abreu of Wood Oviatt Gilman LLP, which stated that the plaintiff's prior counsel, Rosicki, Rosicki & Associates, P.C., had dissolved, that the plaintiff had retained Wood Oviatt Gilman LLP as new counsel, and that the plaintiff was seeking to discontinue the present action. The Supreme Court granted the motion, and the defendant appeals.
" ‘The determination of a motion for leave to voluntarily discontinue an action pursuant to CPLR 3217(b) rests within the sound discretion of the court’ " ( Haughey v. Kindschuh, 176 A.D.3d 785, 786, 109 N.Y.S.3d 415, quoting Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d 881, 883, 969 N.Y.S.2d 67 ). "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 at 786, 109 N.Y.S.3d 415, quoting Marinelli v. Wimmer, 139 A.D.3d 914, 915, 30 N.Y.S.3d 571 ). Under the circumstances, the Supreme Court providently exercised its discretion in discontinuing the action without prejudice, as there was no evidence that the defendant would be prejudiced by a discontinuance (see Aurora Loan Servs., LLC v. Hunte, 189 A.D.3d 1525, 135 N.Y.S.3d 302 ; Onewest Bank, FSB v. Jach, 180 A.D.3d 1061, 1062, 120 N.Y.S.3d 379 ; Haughey v. Kindschuh, 176 A.D.3d at 786, 109 N.Y.S.3d 415 ; Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d at 883, 969 N.Y.S.2d 67 ). Nor was there any prejudice to the defendant arising from the technical failure to comply with CPLR 321(b), and such a technical failure "does not render the acts of the new attorney a nullity" ( Sperry Assoc. Fed. Credit Union v. John, 160 A.D.3d 1007, 1009, 76 N.Y.S.3d 188 ; see HSBC Bank USA, N.A. v. Caesar, 200 A.D.3d 865, 155 N.Y.S.3d 347 ).
The defendant's remaining contentions need not be reached in light of our determination.
IANNACCI, J.P., FORD, WAN and TAYLOR, JJ., concur.