The Second Department, in a matter of first impression, in a full-fledged opinion by Justice Dillon, in the context of a foreclosure action, determined the point at which leave of court and the stipulation of all parties is required to discontinue the action is the return date for the motion to confirm the referee’s report:
CPLR 3217(b) permits the discontinuance of an action by a party with leave of court or by a stipulation of the parties before the cause is submitted to the trier of fact for a determination of the facts; but once the cause has been submitted for a determination of the facts, a discontinuance may only be granted upon both leave of court and a stipulation of all parties appearing in the action. While the mechanics of the statute are clear when an action is tried before a judge or jury, no appellate case has yet addressed the question of when an action is considered “submitted to the court” under CPLR 3217(b) when the matter is referred to a referee to hear and report, and the report is thereafter subject to confirmation, rejection, or modification by the Supreme Court. We hold that the operative date for requiring both leave of court and for the parties to stipulate to the discontinuance is the return date of a motion to confirm, reject, or modify the assigned referee’s report, as that is the moment when the factual issues of a case are submitted to the court for the determinative deliberative process. * * *
We find, as a matter of first impression, that where an action is referred to a court attorney referee to hear and report, the time that is most akin to the submission of the case to the court or the jury for a determination of the facts is the return date of the motion to confirm the referee’s report. Prior to that time, the conclusion of the trial before the referee is not final as the referee, while setting forth his or her findings of fact and conclusions of law, has no authority to determine the matter … . Emigrant Bank v Solimano, 2022 NY Slip Op 05311, Second Dept 9-28-22
Practice Point: In a matter of first impression, the Second Department held that the point at which leave of court and the stipulation of all parties to discontinue a foreclosure action is the return date for the motion to confirm the referee’s report.