| Wells Fargo Bank, N.A. v Fisch |
| 2013 NY Slip Op 00732 [103 AD3d 622] |
| February 6, 2013 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Appellant, v BenjaminFisch et al., Respondents, et al., Defendant. |
—[*1]
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Schack, J.), dated December12, 2011, as, upon granting, in effect, its application for leave to discontinue the actionpursuant to CPLR 3217 (b), did so "with prejudice."
Ordered that on the Court's own motion, the notice of appeal is deemed anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and the action is discontinued without prejudice.
"An application for leave to discontinue an action without prejudice 'is addressed tothe legal, not the arbitrary, discretion of the court,' and thus should be granted unlessthere are reasons which would justify its denial" (Valladares v Valladares, 80AD2d 244, 257-258 [1981], mod on other grounds sub nom. Tucker v Tucker,55 NY2d 378 [1982], quoting Winans v Winans, 124 NY 140, 145 [1891]). "Thegeneral rule is that plaintiff should be permitted to discontinue the action withoutprejudice, unless defendant would be prejudiced thereby" (Valladares vValladares, 80 AD2d at 258; see Brenhouse v Anthony Indus., 156 AD2d411, 412 [1989]; see also Mathias v Daily News, 301 AD2d 503, 504 [2003]; Parraguirre v 27th St. Holding,LLC, 37 AD3d 793, 793-794 [2007]; Great W. Bank v Terio, 200AD2d 608 [1994]).
Here, there was no basis for the Supreme Court's directive that the voluntarydiscontinuance of this action be "with prejudice." Accordingly, the court should havediscontinued the action without prejudice (see Mathias v Daily News, 301 AD2d503 [2003]). Skelos, J.P., Dickerson, Chambers and Hinds-Radix, JJ., concur.