Plaintiff seeks an order pursuant to CPLR 3217 (b) granting permission to discontinue this foreclosure action and to cancel the notice of pendency. The motion is supported by an attorney's affirmation to the effect that plaintiff seeks discontinuance "due to administrative reasons". [*2]

Defendants mortgagors Joseph Glickman and Jennifer Goodwin do not oppose discontinuance but "request" the dismissal be with prejudice contending, in an unsworn submission, that plaintiff has delayed and prolonged the litigation and they should not "have to dragged through this process once again [sic] ".

Plaintiff opposes defendants' "request".

To place the motion in perspective, the history of the proceedings is outlined. In August 2008, defendants Glickman and Goodwin borrowed $199,599.00 from plaintiff's predecessor, Countrywide Bank, FSB, and purchased a single-family residence, 114 Forest Drive, in the Town of Northumberland, Saratoga County, and executed as security for the loan a mortgage to Mortgage Electronic Registration Systems, Inc., nominee for the lender. In December 2008, defendants stopped making payments. According to defendants' unsworn statement, Joseph Glickman became "extremely ill" and the couple learned in December 2008, the house was contaminated with "black mold" and had, as well, severe structural problems that would cost $70,000.00 to $110,000.00 to remediate. Defendants allege they then contacted Countrywide to explore a modification of the loan and vacated the property. According to defendants, the property has been unoccupied since April 2009 and plaintiff changed the locks and posted no trespassing signs.

In September 2009, this action was commenced. Defendants answered the complaint. The CPLR 3408 settlement conference process was commenced, but a settlement was not reached. The file was returned to the court with the notation the property was "mold infested". In August 2010, in response to the court's status inquiry, plaintiff's attorney stated a summary judgment motion would be made. The action remained dormant for 18 months. In February 2012 in response to the court's second status inquiry, plaintiff's attorneys again advised the court that a motion for summary judgment would be made and that counsel was "in the process of obtaining all required affidavits". In June 2012, the court advised plaintiff that "unless there is some formal action by August 5, 2012 to move this case toward a final disposition",the action would be "administratively closed". In September 2012, the court notified plaintiff's counsel the action was "administratively closed and stricken from its calendar" and "may be restored upon plaintiff's or defendant's request". In March 2013, plaintiff filed a motion to restore the action to the calendar and for an order granting summary judgment and appointing a referee and, as well, filed with the County Clerk a second notice of pendency. The unopposed motion was granted and a referee to compute was appointed. Then, this motion was filed in November 2013.

"A motion for leave to discontinue an action without prejudice should be granted unless there are reasons which would justify its denial...such as prejudice to a substantial right of the defendant or other improper consequences...". GMAC Mortgage, LLC v Bisceglie, 109 AD3d 874 (2nd Dept 2013) [Bank's motion to discontinue foreclosure without prejudice denied since purpose was to avoid the adverse consequence of plaintiff's improper use of limited signing officers to obtain summary judgment and because defendant was prejudiced by costs and legal fees incurred to defend action] OneWest Bank FSB v Slowek,AD3d,WL(3rd Dept 2014) [Bank's motion to discontinued without prejudice granted since defendants can continue to live in residence and if new action commenced, will have same rights to defend as in earlier action]. Voluntary discontinuance in a foreclosure action has been also denied recently since the action was then in the settlement conference process and to allow discontinuance would [*3]deprive the mortgagors of the opportunity to pursue settlement, U.S. Bank, N.A. v Gioia,NYS 2d, 2013 WL 7046351 (Sup Ct, Queens County 2013), and after a judgment of foreclosure and sale had been granted because the court was concerned that leaving the action unresolved would undermine established principles of real property law. Countrywide Home Loans, Inc. v Taylor, 39 Misc 3d 597 (Sup Ct, Suffolk County 2013).

Here, defendants' unsworn averments do not give the court a factual basis to justify denial of plaintiff's motion. Yet, if those averments were true, discontinuance, particularly should plaintiff decide not to bring a new action, will result in a "sick", unoccupied, and possibly hazardous property to exist in limbo. Defendants do not desire to reoccupy the residence and were plaintiff to abandon its efforts to foreclose, the property will remain vacant and unmaintained and may become a public hazard left for the Town of Northumberland to address. And, as well, the plaintiff's unsatisfied mortgage clouds the property's title and unsatisfied loan constitutes unresolved credit issues for defendants.

In exercising its discretion, under [CPLR 3217 (b)], and based upon the plaintiff's failure to specify what, if any, action it intends to take concerning the mortgage and property, plaintiff's motion is denied, without prejudice to renewal.

This constitutes the decision and order of the court. The original decision and order is returned to the counsel for plaintiff. All original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. Counsel for plaintiff is not relieved from the applicable provisions of CPLR 2220 relating to filing, entry, and notice of entry of the decision and order.

So Ordered.

DATED: March 25, 2014

Saratoga Springs, New York

HON. THOMAS D. NOLAN, JR.

Supreme Court Justice