Deutsche Bank Natl. Trust Co. v. Cahn

Summary

The Appellate Division, Second Department, reversed orders granting Deutsche Bank leave to discontinue a mortgage foreclosure action against Daniel and Randi Cahn without prejudice. The court held that the action had already been deemed discontinued by operation of RPAPL 1301(3) when Deutsche Bank commenced a second foreclosure action concerning the same mortgage without obtaining leave of court.

Holdings

1. The first action remained pending against the Cahn defendants when the plaintiff moved under CPLR 3217(b), because the prior dismissal order did not result in a final judgment before the motion was made.
2. Because the plaintiff commenced a second foreclosure action against the Cahn defendants to foreclose the same mortgage without leave of the court while the first action was pending, RPAPL 1301(3) deemed the first action discontinued as of September 13, 2023.

Questions Presented

1. Whether the first foreclosure action remained pending against the Cahn defendants when the plaintiff moved under CPLR 3217(b) for leave to discontinue it despite the prior dismissal order and absence of a final judgment.
2. Whether RPAPL 1301(3), as amended by the Foreclosure Abuse Prevention Act, automatically deemed the first foreclosure action discontinued when the plaintiff commenced a second action to foreclose the same mortgage without leave of court while the first action remained pending.
3. Whether the Supreme Court properly granted the plaintiff leave under CPLR 3217(b) to discontinue the first action without prejudice.

Disposition

reversed