Justice Thomas Whelan
Deustsche Bank commenced this action to foreclose a mortgage given by Pascarella defendants to secure a mortgage note executed by Anthony Pascarella. Defendants withdrew their answers under a stipulation in which they waived all defenses and claims and the bank waived its right to pursue a deficiency judgment against defendants. Thomas Pascarella now moved for an order discontinuing the action and to cancel the mortgage. He claimed the bank’s failure to diligently prosecute the action as agreed to under the stipulation prejudiced his rights and interests, including damaging his credit rating. The bank claimed the delay in prosecuting the action was not the result of its abandonment of its claims, but attributable to imposition of rules promulgated by court administrators after commencement of the action unduly increasing its burden in seeking a foreclosure and sale. The court ruled discontinuance of a claim may only be had at the behest of a party asserting such claim, finding as the bank opposed discontinuance, such remedy was unavailable. It also rejected Thomas’ claim that plaintiff failed to pursue the action pursuant to the stipulation, causing him harm, as meritless, declining to invoke its equitable powers. Thus, Thomas’ motion was denied.
