Upon the following papers numbered 1 to 15 read on this motion For summary judgment, cross motion to dismiss, and additional motion to discontinue ; Notice of Motion/Order to Show Cause and supporting papers 1-7; Notice of Cross Motion and supporting papers: 8-13; Opposing papers: 14-15; Reply papers ; Other ; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiff’s motion (#001) seeking summary judgment, default judgments, amendment of the caption, and the appointment of a referee to compute, is denied as moot; and it is further ORDERED that the cross motion (#002) by defendants seeking summary judgment dismissing the complaint is denied as moot; and it is further ORDERED that the cross motion (#003) by plaintiff for an order discontinuing this action and cancelling the notice of pendency is considered under CPLR 3217 and 6514, and is granted. This is an action for foreclosure on residential property located in Huntington Station. In essence, on September 25, 2006, defendants Isaac Wright and Laci Satterfield borrowed $508,500.00 from plaintiff’s predecessor in interest and signed a promissory note and a mortgage. The loan was thereafter modified by loan modification agreements dated April 28, 2008, October 1, 2009, September 23, 2010, and May 8, 2012, and then by a Home Affordable Modification Agreement dated August 15, 2016. Since May 1, 2017, defendants failed to pay the monthly installments due and owing. This action was commenced by filing on September 13, 2019. Defendants Isaac Wright and Laci Satterfield, through counsel, filed an answer on October 4, 2019, which was later amended on October 6, 2019, asserting nineteen affirmative defenses and one counterclaim. On October 12, 2021, plaintiff filed its motion (#001) for summary judgment against the answering defendants, default judgment as against the remaining defendants, and appointment of a referee to compute. Defendants filed opposition on October 25, 2021. The motion was adjourned several times as a result of various state and federal moratoria in place as a result of the CoVid 19 Pandemic. On January 31, 2022, the defendants filed a cross motion(#002) for summary judgment dismissing the complaint. The basis of the cross motion was the Appellate Division Second Department’s Opinion in Bank of America, N.A. v. Kessler, 202 AD3d 10, 160 NYS3d 277 (2d Dept 2021) (3-1 dissent), issued after submission of plaintiff’s motion (#001) and defendants’ initial opposition. Plaintiff then placed its file on an internal “hold” and the motions (#001, 002) were further adjourned. On April 12, 2022, plaintiff filed an additional motion (#003) and now seeks to discontinue the action and cancel the notice of pendency. The plaintiff notes that as a result of the Kessler opinion, plaintiff is unable to prove full compliance with RPAPL 1304 and, therefore, seeks to discontinue the action without prejudice. A claim may be voluntarily discontinued by court order pursuant to CPLR 3217(b) “upon terms and conditions, as the court deems proper” (CPLR 3217[b]). Such a motion should be granted without prejudice “absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences” (Kondaur Capital Corp. v. Reilly, 162 AD3d 998, 999, 79 NYS3d 632 [2d Dept 2018], citing CPLR 3217[c]; Tucker v. Tucker, 55 NY2d 378, 383-384, 434 NE2d 1050 [1982]; New York Mtge. Trust, Inc. v. Dasdemir, 116 AD3d 679, 679, 985 NYS2d 86 [2d Dept 2014]; American Tr. Ins. Co. v. Roberson, 114 AD3d 821, 821, 980 NYS2d 778 [2d Dept 2014]; Wells Fargo Bank, N.A. v. Fisch, 103 AD3d 622, 622, 959 NYS2d 260 [2d Dept 2013]). The plaintiff has advanced sufficient grounds for the relief requested. The motion is based upon plaintiff’s acknowledgment of the Kessler opinion, and that plaintiff could not meet the standard set by case precedent in proving compliance with RPAPL §1304. In opposition the defendants allege that”the voluntary discontinuance…revokes the prior acceleration” and would therefore be prejudicial to the defendants. Additionally, defendants claim that, pursuant to the terms of the mortgage, de-acceleration requires that a default be cured, and that this prerequisite has not be met. The Court finds that none of these presumptions bear merit, and certainly do not not amount to “evidence that the defendant would be prejudiced by a discontinuance without prejudice” (Kondaur Capital Corp. v. Reilly, 162 AD3d at 999, supra, citing America’s Residential Props., LLC v. Lema, 118 AD3d 735, 736, 987 NYS2d 169 [2014]). Additionally, the plaintiff should not be penalized for abiding by the ever-changing interpretations from the Second Department on various aspects of foreclosure law, that are then applied retroactively to determinations in the appellate pipeline. As here, plaintiff in foreclosure actions must ensure that all proper procedures have been followed and to seek to correct same when it is discovered that legal procedures cannot be verified. In accordance with the above, the plaintiff’s initial motion (#001) is denied, defendants’ cross motion (#002) is denied, and plaintiff’s additional motion (#003) is granted in its entirety. The proposed order submitted with the motion (#003), as modified, has been signed. Dated: November 19, 2021
