| Matter of Avery v Aery |
| 2008 NY Slip Op 08053 [55 AD3d 1095] |
| October 23, 2008 |
| Appellate Division, Third Department |
| In the Matter of Suzanne Avery et al., Appellants, v Sandra A. Aery, asAssessor of the Town of Harrietstown, et al., Respondents. |
—[*1] James E. Maher, Saranac Lake, for Sandra A. Aery and others, respondents. Robert E. White, Saranac Lake, for Saranac Lake Central School District, respondent.
Spain, J. Appeal from a judgment of the Supreme Court (Demarest, J.), entered July 24, 2007 inFranklin County, which, among other things, in a proceeding pursuant to CPLR article 78, deniedpetitioner's cross motion for leave to serve an amended petition.
In October 2006, as the owners of real properties situated in the Town of Harrietstown, FranklinCounty, petitioners commenced this CPLR article 78 proceeding challenging the Town's 2006assessment roll, which was based upon a town-wide revaluation. In January 2007, respondentsanswered and then moved for summary judgment dismissing the petition. In March 2007, petitionerscross-moved for leave to file and serve an amended petition which added additional parties aspetitioners, expanded the original petition from five claims to 12 claims and included over 1,000 pagesof accompanying documents. By a July 13, 2007 bench ruling, Supreme Court denied petitioners' crossmotion to amend, concluding that the proposed amendment was essentially a newly drafted petition.After respondents' argument in support of [*2]their summary judgmentmotion, in open court, petitioners' counsel admittedly withdrew and discontinued the original petition.Thereafter, the court issued a judgment which denied petitioners' cross motion for leave to amend thepetition and discontinued the proceeding pursuant to CPLR 3217 (b). Petitioners now appeal, arguingthat their motion to amend the petition should have been granted.
The appeal must be dismissed. By voluntarily withdrawing the petition in open court after theirmotion to amend the petition was denied and in lieu of responding to respondents' motion for summaryjudgment—thereby precluding a decision on the merits—petitioners consented to thedismissal of the proceeding by Supreme Court pursuant to CPLR 3217 (b). Unlike a contesteddiscontinuance where the aggrieved party may appeal (see e.g. Matter of Sicurella v Embro, 40 AD3d 769, 770 [2007];Mancinelli v Mancinelli, 228 AD2d 747, 747 [1996]), or a situation where the party whooriginally requested a discontinuance sought then to vacate the order of discontinuance, resulting in anappealable order (see e.g. Woody's Lbr.Co., Inc. v Jayram Realty Corp., 46 AD3d 804, 804 [2007]; Bove v Cherney, 252AD2d 512, 512 [1998]; Chandler v Chandler, 108 AD2d 1035, 1035-1036 [1985];Gardner v Board of Educ., Cent. School Dist. No. 1, 28 AD2d 616, 616 [1967]),[FN*]here petitioners have appealed from an order by which they are not aggrieved. In requesting adiscontinuance without reserving any right to appeal, petitioners terminated the very proceeding thatprovided the context to their arguments on appeal (see Candreva v Dubrow, 272 AD2d 496,497 [2000]).
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the appeal isdismissed, without costs.
Footnote *: Petitioners moved to resettleSupreme Court's July 18, 2007 order and judgment, and that motion was denied by order datedFebruary 25, 2008. Petitioners' subsequent appeal from that order is pending before this Court.