Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on May 14, 2025, under motion sequence number three, by defendant Yeruchem Israel and nominal defendants 2187-2189 Ryer Ave MBSD LLC, 1952 Anthony Ave MBSD LLC, 2267 Creston MBSD LLC, 2425 Prospect MBSD LLC, 2427 Prospect MBSD LLC, and Prospect Creston Holdings MBSD LLC (hereinafter collectively "movants") for an order pursuant to 22 NYCRR 130-1.1, issuing sanctions against Haim Kahan (hereinafter "plaintiff") including, but not limited to awarding costs and reasonable attorney fees in favor of the movants.

The motion is opposed.

-Notice of motion

-Affirmation in support

Exhibits A-I

-Memorandum of law in support

-Affirmation in opposition

BACKGROUND

On April 23, 2025, the plaintiff commenced the instant action by filing a summons with notice with the King's County Clerk's office (hereinafter "KCCO"). No complaint had been filed.

By amended order to show cause, signed on April 24, 2025 by Hon. Kerry Ward, under motion sequence number one, plaintiff sought a preliminary injunction with a temporary restraining order enjoining and restraining defendant and all those acting in concert with him from taking certain actions, effectuating certain transactions among other things. A temporary restraining order (hereinafter "TRO") was granted pending the hearing of the motion, enjoining defendants from certain activity on behalf of the entities. The motion was scheduled for a return date on May 15, 2025.

On April 28, 2025, defendant Yeruchem Israel and nominal defendants 2187-2189 Ryer Ave MBSD LLC, 1952 Anthony Ave MBSD LLC, 2267 Creston MBSD LLC, 2425 Prospect MBSD LLC, 2427 Prospect MBSD LLC, and Prospect Creston Holdings MBSD LLC filed a notice of appearance and made a demand pursuant to CPLR 3012 (b) that the plaintiff serve a copy of the complaint in this action within twenty days of this demand.

By emergency order to show cause, signed on April 28, 2025 by Hon. Kerry Ward, under motion sequence number two, defendant Yeruchem Israel and nominal defendants 2187-2189 Ryer Ave MBSD LLC, 1952 Anthony Ave MBSD LLC, 2267 Creston MBSD LLC, 2425 Prospect MBSD LLC, 2427 Prospect MBSD LLC, and Prospect Creston Holdings MBSD LLC sought an order pursuant to CPLR 6311, 6301, 6313, and 6314 vacating and alternatively [*2]modifying the TRO issued on April 24, 2025. A stay on the TRO was granted and each party acting individually or on behalf of any entity was restrained from taking any actions concerning the subject property, superseding the Court's prior order signed on April 24, 2025. The OSC was scheduled for a return date of May 15, 2025.

On May 2, 2025, the plaintiff filed a notice of voluntary discontinuance pursuant to CPLR 3217 (a) (1), voluntarily discontinuing the action, without prejudice. Thereafter, the pending orders to show cause under motion sequence numbers one and two were administratively closed.

By the instant notice of motion, filed on May 14, 2025, under motion sequence number three, defendant Yeruchem Israel and nominal defendants 2187-2189 Ryer Ave MBSD LLC, 1952 Anthony Ave MBSD LLC, 2267 Creston MBSD LLC, 2425 Prospect MBSD LLC, 2427 Prospect MBSD LLC, and Prospect Creston Holdings MBSD LLC sought an order pursuant to 22 NYCRR 130-1.1 issuing sanctions against the plaintiff and awarding costs and reasonable attorney fees in favor of the movants.

By short form order dated July 31, 2025, on motion sequence number three, the Court indicated that on the return date of July 31, 2025, the movants appeared, but the plaintiff did not. The Court scheduled a sanction hearing for October 17, 2025 at 10:30 am.

On October 6, 2025, the parties filed a stipulation to adjourn. The matter was adjourned to December 5, 2025 at 10:30 am.

On December 4, 2025, the parties filed a stipulation to adjourn. By interim order dated December 5, 2025, the Court adjourned the matter to January 7, 2026 at 2:30 pm for an in-person appearance in Part 52. The adjournment was final.

On January 6, 2026, the defendants filed a notice of withdrawal of motion sequence number three. The notice of withdrawal of the motion indicated that defendants withdraw, without prejudice, the motion filed in this action, which was scheduled for a hearing on January 7, 2025.

LAW AND APPLICATION

CPLR 3217 (a) (1) provides that "[a]ny party asserting a claim may discontinue it without an order 1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court" (CPLR 3217 [a] [1]).

The discontinuance of an action divests the court of jurisdiction for a judgment thereafter (CitiMortgage, Inc. v Pantoja, 223 AD3d 610, 610 [1st Dept 2024]). However, a "[v]oluntary discontinuance d[oes] not divest the court of jurisdiction to impose sanctions for pre-discontinuance conduct" (13 E. 124 LLC v J&M Realty Servs. Corp., 222 AD3d 446, 449 [1st Dept 2023]).

22 NYCRR 130-1.1 "sanctions 'are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics'" (13 E. 124 LLC v J&M Realty Servs. Corp., 222 AD3d 446 [1st Dept 2023], quoting Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999]).

Ordinarily, a motion may be withdrawn by the moving party at any time before the return date (see Caplash v Rochester Oral & Maxillofacial Surgery Associates, LLC, 48 AD3d 1139, 1140 [4th Dept 2008]) or submission (see Wallace v Ford, 44 Misc 2d 313, 313 [Sup Ct, Erie County 1964). "[A] motion may not be withdrawn after the return date without the consent of all parties or without leave of Court") (Deutsche Bank Nat. Trust Co. v Young, 2012 WL 6019543 [Sup Ct, Suffolk County 2012], citing People v Cabrera, 91 NY2d 984 [1998], and citing Caplash v Rochester Oral & Maxillofacial Surgery Assocs., LLC, 48 AD3d 1139, 1140 [4th Dept 2008], and citing Oshrin v Celanese Corp. of America, 37 NYS2d 548, 550 [Sup Ct, New York County 1942], affd 265 AD 923 [1st Dept 1942], affd 291 NY 170 [1943]).

The orders to show cause under motion sequence number one and motion sequence number two are rendered academic, on consent, based on the voluntary discontinuance of the action.

Although the matter was voluntarily discontinued, the Court retained jurisdiction over the motion for sanctions for frivolity under motion sequence number three. On January 6, 2026, the defendants filed a notice of withdrawal of the motion. The parties appeared on January 7, 2026. The motion is deemed withdrawn, with prejudice as to the instant action. There was no objection the defendants' request to withdraw motion sequence number three.

CONCLUSION

The motion under motion sequence number three, by defendant Yeruchem Israel and nominal defendants 2187-2189 Ryer Ave MBSD LLC, 1952 Anthony Ave MBSD LLC, 2267 Creston MBSD LLC, 2425 Prospect MBSD LLC, 2427 Prospect MBSD LLC, and Prospect Creston Holdings MBSD LLC for an order pursuant to 22 NYCRR 130-1.1, issuing sanctions against plaintiff Haim Kahan and in favor of the movants, including, but not limited to costs and reasonable attorney's fees is deemed withdrawn, with prejudice as to the instant action.

The orders to show cause under motion sequence number one and motion sequence number two are rendered academic, on consent, based on the voluntary discontinuance of the action.

The foregoing constitutes the decision and order of this Court.