Opinion
January 18, 1994
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order is affirmed, with costs.
The defendant's contention that the court erred by granting the plaintiff's motion for a voluntary discontinuance is without merit. The authority of a court to grant or to deny an application pursuant to CPLR 3217 (b) for a voluntary discontinuance of an action is within its sound discretion (Tucker v. Tucker, 55 N.Y.2d 378, 383). In the absence of special circumstances, such as particular prejudice to the defendant or other improper consequences, an application for a voluntary discontinuance should be granted (see, CPLR 3217 [b]; Tucker v Tucker, supra; Matter of Commissioner of Franklin County Dept. of Social Servs. v. Terry M., 178 A.D.2d 881; State of New York v Hubbard, 126 A.D.2d 717, 718; County of Westchester v. Becket Assocs., 102 A.D.2d 34, 49, affd 66 N.Y.2d 642). Additionally, when two actions for the same relief are pending, it is within the court's discretion to dismiss a prior pending action instead of dismissing the later action pursuant to CPLR 3211 (a) (4) (see, Dunn v. Dunn, 86 A.D.2d 772, 774).
Here, there are no "special circumstances" to warrant the denial of the plaintiff's motion to discontinue the first foreclosure action under Putnam County Index No. 78/91. It is undisputed that the defendants defaulted on their mortgage payments and it is clear that the plaintiff had a right to foreclose on the subject property. The plaintiff gave proper notice of discontinuance to the defendants as required by CPLR 3217. Although the defendants had obtained a bankruptcy stay prior to the plaintiff's commencement of the first foreclosure action, the record establishes that the plaintiff successfully moved in Bankruptcy Court to vacate the automatic stay prior to filing the second action. Based on these facts, it was within the court's discretion to discontinue the first action and to allow the second action to proceed (see, Alagappan v. Jaffer, 157 A.D.2d 687; Gateway State Bank v. Shangri-La Private Club for Women, 113 A.D.2d 791, 792; Dunn v. Dunn, 86 A.D.2d 772, 774, supra).
We have reviewed the appellant's remaining contentions and find them to be without merit. Thompson, J.P., Balletta, O'Brien and Santucci, JJ., concur.