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MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department determined Supreme Court properly denied petitioner’s motion to discontinue the action which challenged the tax assessments of several lots. Supreme Court abused its discretion, however, when it, sua sponte, directed merger of several parcels into a single tax lot:

A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally 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 … .

In this case, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend against the proceeding … , and was improperly sought to avoid the consequences of a potentially adverse determination and to obtain an improper result.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing that the six parcels be merged into a single tax lot. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” .. . Here, the court failed to abide by this principle. None of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner. Matter of Blauvelt Mini-Mall, Inc. v Town of Orangetown, 2018 NY Slip Op 01051, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/DISCONTINUANCE  (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/SUA SPONTE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/REAL PROPERTY TAX LAW (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))

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MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION... JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S...