You are here: / / MOTION TO DISCONTINUE STATE FORECLOSURE ACTION WHILE FORECLOSURE WAS PURSUED...
, ,

MOTION TO DISCONTINUE STATE FORECLOSURE ACTION WHILE FORECLOSURE WAS PURSUED IN FEDERAL COURT SHOULD HAVE BEEN GRANTED WITHOUT PREJUDICE BECAUSE THERE WAS NO SHOWING OF PREJUDICE ON THE PART OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to discontinue the foreclosure action should not have been granted with prejudice because there was no showing of prejudice on the part of the defendant (Jach):

… [T]he plaintiff commenced this action … seeking to foreclose the subject mortgage. After interposing an answer, in which he alleged lack of standing as an affirmative defense, Jach moved for summary judgment dismissing the complaint insofar as asserted against him, and the plaintiff cross-moved, inter alia, for summary judgment on the complaint. The Supreme Court referred the action to a referee to hear and report on the issue of standing. After conducting a hearing, the referee issued a report finding, in effect, that the plaintiff had failed to establish its standing for purposes of its cross motion for summary judgment on the complaint.

… [W]ith this action still pending and the referee’s report not yet confirmed, the plaintiff commenced an action in federal court seeking to foreclose the subject mortgage. Subsequently, … the plaintiff moved before the Supreme Court, among other things, for leave to discontinue the action without prejudice, which Jach opposed.

In the order appealed from, the Supreme Court, inter alia, in effect, upon granting that branch of the plaintiff’s motion which was for leave to discontinue the action, did so with prejudice. The plaintiff appeals.

The Supreme Court, in granting that branch of the plaintiff’s motion which was for leave to discontinue the action, should have done so without prejudice. Pursuant to CPLR 3217(b), “an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper.” As a general rule, “a plaintiff should be permitted to discontinue an action without prejudice unless the defendant would be prejudiced thereby” … . Here, there was no evidence that Jach would be prejudiced by a discontinuance … . Onewest Bank, FSB v Jach, 2020 NY Slip Op 01357, Second Dept 2-26-20

 

You might also like
Doctor Who Allegedly Wrongfully Prescribed Narcotics for a Drug Addict Who Shot Plaintiff’s Decedent in an Attempt to Steal Narcotics from a Pharmacy Did Not Owe a Duty of Care to Plaintiff’s Decedent
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF FELL WHEN A PLANK ON A SCAFFOLD HE WAS ERECTING BROKE (SECOND DEPT).
PLAINTIFF, WHO WAS USING HIS OWN LADDER WHEN IT SLID CAUSING HIM TO FALL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).
Zoning Board Should Have Made Every Effort to Accommodate Religious Use/Zoning Board’s Denial of Variances Annulled and Variances Granted
NO LIABILITY WHERE DRIVER SUFFERED AN UNFORESEEABLE MEDICAL EMERGENCY.
Court Participation in Testimony Read-Back Is Error
Late Notice of Election, Caused by Law Office Failure, Should Have Been Allowed
CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

THE MORTGAGE-PAYMENT MODIFICATION AGREEMENT DID NOT CONSTITUTE AN ACKNOWLEDGMENT... REVOLVER FOUND BY A PASSERBY SEVEN BLOCKS FROM THE CRIME SCENE SHOULD NOT HAVE...