Aurora Loan Services, LLC v. Gaines

In an action pursuant to RPAPL article 13 to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J), dated February 17, 2011, which, in effect, denied its application to withdraw its motion to discontinue the action, in effect, without prejudice, and discontinued the action with prejudice.

Ordered that on the Court’s own motion, the notice of appeal from the order dated February 17, 2011, is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, without costs or disbursements, and the plaintiffs application is granted.

Under the particular circumstances of this case, the Supreme Court should have permitted the plaintiff to withdraw its motion to discontinue the action, in effect, without prejudice (see generally Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2211:9). Rivera, J.P, Hall, Lott and Cohen, JJ., concur.