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ESTATE OF MICHAEL MODELL, Deceased

ESTATE OF MICHAEL MODELL, Deceased (01/1730/F) — In these contested proceedings related to the estate of Michael Modell, Abby Modell as co-trustee and beneficiary of the trusts established under decedent's will, Alexander Modell, Ashley Modell and Andrew Modell as beneficiaries of those trusts, and the executor of the estate of Joel Goldberg, a deceased co-trustee, have settled their differences. In view of the settlement, Abby, joined by the executor, seeks leave to discontinue with prejudice and without costs the claims among the settling parties in the seven abovecaptioned proceedings. Michael Modell, the third co-trustee who was not a party to the settlement, does not oppose the motion.

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ESTATE OF MICHAEL MODELL, Deceased (01/1730/F) — In these contested proceedings related to the estate of Michael Modell, Abby Modell as co-trustee and beneficiary of the trusts established under decedent’s will, Alexander Modell, Ashley Modell and Andrew Modell as beneficiaries of those trusts, and the executor of the estate of Joel Goldberg, a deceased co-trustee, have settled their differences. In view of the settlement, Abby, joined by the executor, seeks leave to discontinue with prejudice and without costs the claims among the settling parties in the seven abovecaptioned proceedings. Michael Modell, the third co-trustee who was not a party to the settlement, does not oppose the motion.

The determination of a motion to discontinue (CPLR 3217[b]) rests within the sound discretion of the court (see e.g. Columbus 95th St. LLC v. Greenidge-Joiner, 36 Misc 3d 136(A), 2012 Slip Op 51368[U] [1st Dept 2012]). Further, as the Appellate Division, First Department, has observed, “a party ordinarily cannot be compelled to litigate and, absent special circumstances, such as prejudice to adverse parties, a discontinuance should be granted” (Burnham Serv. Corp. v. Nat’l Council on Comp. Ins., Inc., 288 AD2d 31, 31 [1st Dept 2001] [citations omitted]). Under the circumstances here, and in the absence of any opposition, the motion is granted.

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