Opinion
Index No. 507458/2023 Motion Seq. Nos. 3 4
06-18-2024
BATES HOLDINGS II LLC, acting by and through its servicer' Field Point Servicing, LLC, Plaintiff., v. 209 TAAFFE REALTY, LLC, ZALMEN BIEDERMAN, CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, U.S:. SMALL BUSINESS ADMINISTRATION, and "JOHN DOE #1" through "JOHN DOE #12," the last twelve names being .fictitious and unknown to the Plaintiff, the persons or parties, if any, having or claiming an interest in or lien upon the premises, described in the Complaint, Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN, JUDGE.
DECISION ARID ORDER
Hon. Leon Ruchelsman JSC
The defendants have moved pursuant to CPLR §32.11 seeking to dismiss the lawsuit. The plaintiff has- cross-moved seeking to voluntarily discontinue the action.. The motions have been opposed respectively, Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following .determination.
As recorded in a prior order on January 19, 2017 the defendants executed a mortgage and accompanying agreements in the amount of $3,200,000. The mortgage and note were assigned to the plaintiff on October 4, 2021. The mortgage and note concerned property located at 209 Taaffe Place in Kings County. The plaintiff alleges a default occurred when the. defendants failed to make any payments in October 2020. Although some payments were made after that date following an attempt to globally resolve the outstanding debts, as of the filing of the motion the defendants owed $3,016,347.97 plus interest, late charges and Other- fees.. The plaintiff has commenced this lawsuit seeking- a foreclosure of the mortgage. The above noted motions have now been filed.
Conclusions of Law
It is well settled that "proper service of an RPAPL 1303 notice is a condition precedent to commencing a foreclosure action, and the. 'foreclosing, party has the burden of showing compliance therewith'" (see, Federal National Mortgage Association v. Raia, 211 A.D.3d 692, 181 N.Y.S.3d 103 [2d Dept., 2022]), - If the burden demonstrating compliance with RPAPL §1303 has not been shown the the complaint must be dismissed (21stMortcuae Corporation v. Nodumehl et al, 211 A.D.3d 893, 180 NY'S 3d 5 68 [2d Dept., 2022]).
The plaintiff has not demonstrated it has complied with the requirements of RPAPL §1303 at all. There is no merit to the argument the defendants waived any such defenses. The plaintiff pears the burden to demonstrate compliance and absent such compliance the complaint must be dismissed (see, Bank of New York Mellon v. Mitchell, 51 Misc.3d 1220 (A), 41 N.Y.S.3d 448 [Supreme Court Kings County 2016]). Rather, the plaintiff argues the lawsuit should be voluntarily discontinued.
It is well settled that the- court maintains discretion whether to grant a voluntary discontinuance of a litigation pursuant to CPLR §3217-b) (Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683 [1982]) . That discretion includes the determination whether such discontinuance is granted 'without prejudice' (Valladares v. Valladares, 80 A.D.2d 244, 438 N.Y.S.2d 810 [2d Dept., 1981]) . Generally, such discontinuance should be granted unless valid reasons, such as prejudice to the defendant, warrant denial (id) . Prejudice means, the discontinuance would prejudice a substantial right of a party, circumvent an order of the court, avoid the consequences of a potentially adverse determination or produce some other- improper-result (Marinelli v. Wimmer, 139 A.D.3d 914, 30 N.Y.S.3d 571 [2d Dept:., 2016]). Thus, in Catherine Commons LLC v. Town of Orangetown, 157 A.D.3d 785, 69 N.Y.S.3d 662 [2d Dept., 2018] the court denied the request for voluntary discontinuance since such discontinuance. would prejudice a party's ability to challenge an assessment. Again in Baez v. Parkway Mobile Homes Inc., 125 A.D.3d 905, 5 N.Y.S.3d 154 [2d Dept., 2015] the court held discontinuance was improper where it was only pursued to avoid the consequence's of failing to respond to. a 90 notice and an adverse determination of a summary judgement motion filed. Thus, a discontinuance should not be granted where to do so would permit a: party to avoid the consequences of its own actions (Citibank N.A. v. Bravo, 168 A.D.3d 1161, 90 N.Y.S.3d 673 [3rd Dept., 2019]). In this case the discontinuance is only being sought to avoid a dismissal based upon the failure to serve a notice pursuant to RPAPL §1303. That is an improper basis upon which to seek a voluntary discontinuance.
Therefore, based on the foregoing the motion seeking a discontinuance is denied. The motion seeking dismissal of the complaint is granted.
So ordered..