Supreme Court, Kings County

Decided on June 8, 2026

Index No. 502908/2025

Katherine A. Levine, J.

[*1]

Defendants Avraham Follman ("Avraham") and Malka Turner Reiner ("Malka") (together, the "Defendants") move for an order, pursuant to CPLR 3211 (a)(1), (3), and (7), dismissing the Amended Verified Complaint of Plaintiff Ahron Follman ("Plaintiff" or "Ahron") (Motion Sequences [MS] #6 and #7). Plaintiff cross-moves for an order, pursuant to CPLR 3217(a) and (b) for discontinuance of this action (MS # 8).

Plaintiff commenced this suit on January 27, 2025 by filing a summons along with an emergency order to show cause ("OSC") for a TRO permitting Seddio and Associates to use all rents collected to pay outstanding taxes and violations on the real property located at 18-28 and 38 Warsoff Place, Brooklyn, New York 11205 (the "Property"). The court granted the TRO but required Seddio and Associates to hold all remaining rents in escrow pending determination as to the appropriate property manager. The parties proceeded to engage in extensive motion practice and appeared before this court on March 25, 2025 and May 20, 2025, for oral argument on the pending motions.^FN1 Plaintiff did not file a complaint until September 12, 2025.

Plaintiff filed another emergency OSC on September 29, 2025 seeking a new TRO enjoining the sale of the Property by the defendants. The OSC was signed by The Hon. Desmond Greene and entered on September 30, 2025; however, the said court vacated the TRO on the same day. On October 9, 2025, this court issued an order (i) vacating all TROs, (ii) ordering an independent appraisal of the Property and (iii) providing Defendants thirty (30) days to respond to Plaintiff's complaint.

Plaintiff filed an Amended Complaint on November 5, 2025 and simultaneously filed a notice of pendency. On November 6, 2025, Plaintiff submitted yet another emergency application requesting that the court enjoin the sale of the Property. The court signed an order on November 10, 2025 directing Plaintiff to "present sufficient evidence to Defendants and the Court that Plaintiff possesses sufficient funds in escrow to purchase the property at a price above the amount that is currently being offered." On November 12, 2025, Plaintiff followed with another emergency application seeking to amend the court's November 10, 2025 order. On November 17, 2025, Defendant Avraham filed an emergency OSC to vacate the notice of pendency and impose sanctions upon Plaintiff. Defendant Malka filed an affirmation adopting and incorporating Defendant Avraham's OSC's contentions and assertions.

The parties appeared before this court on November 18, 2025 for oral argument concerning whether the 2011 or 2017 trust was operative and which operating agreement governed the actions of the parties. These omnibus issues are currently before the Hon. Richard Velasquez in a different matter (Index No. 508865/2023), whereas the case before this court concerns one piece of property. The parties argued, inter alia, over whether Plaintiff, under the operating agreement of either trust, had a right of first refusal and whether Plaintiff is considered a manager of the trust (and thus, how much money Plaintiff is entitled from the sale, if any). The major issue—whether plaintiff even was entitled to any proceeds from the sale of the building—is dependent on whether the 2011 or 2017 trust was operative (the 2017 trust apparently divested plaintiff of his one-quarter [1/4] share). This substantive issue is the core of the lawsuit before Justice Velasquez.

Further compounding the confusion over which trust was operative was the interaction of the trust with its operating agreement. Under the operating agreement, a unanimous consent by the managers is required to sell any property owned by the trust. After determining that the parties would not likely come to a unanimous agreement to sell the Property such that either side could block the sale of the property regardless of which trust was effective, this court exercised its equitable right and ordered, based on principles of fairness and judicial efficiency, that (i) Plaintiff had no right of first refusal of the sale of the Property, (ii) the sale of the Property should proceed with the prospective buyer procured by Defendants, (iii) Plaintiff receive one-quarter interest of the proceeds from the sale of the Property, and one-quarter of any additional monies received as a result of the sale; and (iv) any TROs in existence enjoining the sale of the Property be vacated. The court directed the parties to memorialize the order in writing, but the parties could not agree on the wording and thus no order was officially entered.

Plaintiff filed a Notice of Discontinuance pursuant to CPLR 3217(a) that same night—November 18, 2025—immediately after the court had rendered its decision. Defendant Malka filed a Rejection of the Notice of Discontinuance on November 19, 2025 which was followed by Plaintiff's rejection of Defendant Malka's rejection.

On November 25, 2025, Defendants Avraham and Malka both filed a motion to dismiss the verified complaint with prejudice pursuant to CPLR 3211 (a)(1), (a)(3), and (a)(7). Plaintiff filed a cross motion on March 18, 2026, this time seeking discontinuance under CPLR 3217(a) and (b) and opposing Defendants' motions to dismiss.

Motion to Dismiss

This court, instead of dismissing this case under CPLR 3211(a)(1), (a)(3), and (a)(7) with prejudice elects to dismiss this case under CPLR 3211(a)(4) without prejudice. CPLR 3211(a)(4) provides that dismissal is appropriate when "there is another action pending between the same [*2]parties." The court may sua sponte dismiss under this provision "based on judicial economy." Kropac v Long Island Trust Co., 88 AD2d 584 (2d Dept., 1984).

Under CPLR 3211(a)(4), "a Court has broad discretion as to the disposition of an action when another is pending" between the same parties for the same cause of action. DAIJ, Inc. v Roth, 85 AD3d 959, 959 (2d Dept. 2011); see also, Whitney v Whitney, 57 NY2d 731, 732 (1982); Barringer v Zgoda, 91 AD2d 811, 811 (3d Dept. 1982); 6 Weinstein-Korn-Miller, NY Civ. Prac., P 3211.18. A court may dismiss an action pursuant to CPLR 3211 (a)(4) where there is a substantial identity of the parties and causes of action. Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622 (2d Dept. 2009); Montalvo v Air Dock Sys., 37 AD3d 567, 567 (2d Dept. 2007).

It is not necessary that the precise legal theories presented in the first action also be present in the second action, Cherico, supra 67 AD3d at 622; see also Mtr. of Schaller v Vacco, 241 AD2d 663 (1997), so long as the two actions are "sufficiently similar" and that the relief sought is "the same or substantially the same." Cherico, supra 67 AD3d at 622 citing to Liebert v TIAA-CREF, 34 AD3d 756, 757 (2d Dept. 2006). The critical element is that "both suits arise out of the same subject matter or series of alleged wrongs" (White Light Prods. v On The Scene Prods., 231 AD2d 90, 94 [2d Dept. 1997]), and that there existed another action between these parties at the time of the commencement of the case in which "all issues could be determined." Ithaca Textiles v Waverly Lingeries Sales, Inc., 24 AD2d 133 (3d Dept. 1965); Barringer v Zgoda, supra 91 AD2d at 811.

The merits of the action before Justice Velasquez will ineluctably address the sale of the Property described above and listed in this decision. On the merits, this court must decide which managers' approval is needed for the sale of the Property and the appropriate allocation of funds to said managers from the sale. Until Justice Velasquez renders a decision regarding which of the trusts in contention is the appropriate operative trust, how the operating agreements interact with the trusts, and therefore who the appropriate managers of said trust and their respective proprietary rights are, this court is precluded from ruling on the merits of this action. Furthermore, the fact that there may be some additional parties and broader issues in the action before Justice Velasquez, thus possibly permitting more extensive relief there than in the instant action, makes the dismissal of the action herein particularly appropriate (Siegel, New York Practice, § 262, p 322) See, Barringer v. Zgoda, supra 91 AD2d at 811. As such, the case is dismissed, without prejudice.

Discontinuance under CPLR 3217(a)

This court finds that Plaintiff's notice of discontinuance under CPLR 3217(a) is procedurally defective. CPLR 3217(a) states that a party may discontinue an action without a court order, "at any time before a responsive pleading is served." It is well established that a summons with notice is not a pleading. McMahon v McMahon, 279 AD2d 346, 346 (1st Dept. 2001); Marcilio v Hennessy, 46 Misc 3d 1225(A), 2015 NY Slip Op 50285(U), *1 (Sup Ct, NY County 2015). However, the absence of formal pleadings is not dispositive when the court has had the chance to address the allegations and merits of the case (see Minkow v. Metelka, 46 AD3d 864 [2d Dept 2007]), and unilateral discontinuance on notice "should be only available at the earliest stages of litigation to avoid prejudicial results." 7B Carmody-Wait 2d §47:5. Here, even absent a filing of complaint, Plaintiff waived the right to seek discontinuance where he voluntarily participated in preliminary conference and an inquest.

Plaintiff points to the lack of a formal response by Defendants to the Amended Verified [*3]Complaint as its basis for discontinuance as of right. However, by doing so, Plaintiff is essentially asking the court to ignore the amount of time and energy spent litigating on the issues that were brought before this court with the multiple emergency OSCs, motion practice, and oral arguments between the parties regarding the sale of the Property. Plaintiff commenced this action in January 2025 and failed to file a complaint until September 2025. Plaintiff cannot have it both ways and argue for months on end on the merits of this case—whether plaintiff can stop the sale of the property or in the alternative conduct the sale in lieu of the defendants—but then point to a procedural defect later in the litigation and claim voluntary discontinuance. It is also curious that plaintiff sought voluntary discontinuance right after the court decided on the disposition and sale of the Property and the share of the proceeds therefrom. Furthermore, the court commented that Plaintiff "could not just discontinue [this case]. You [Plaintiff] needed leave of the Court because there had already been litigation." (Mar. 25, 2026 Tr. at 6). This court commented and recognized that when findings have already been made on the record, they cannot be nullified by a unilateral discontinuance. Id. at 24-25.

Discontinuance under CPLR 3217(b)

Neither may Plaintiff discontinue under CPLR 3217(b). Voluntary discontinuance under CPLR 3217(b) is "permissible upon terms and conditions as the court deems proper." Motions to discontinue under CPLR 3217(b) "generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid consequences of a potentially adverse determination, or produce other improper results." Haughey v Kindschuh, 176 AD3d 785, 786 (2d Dept, 2016). The parties have already litigated substantive issues regarding the sale of the Property through numerous sworn submissions and motions practice prior to Plaintiff filing the Notice of Discontinuance on November 18, 2025. Only when the court orally made an adverse ruling against Plaintiff on November 18, 2025, did Plaintiff proceed to file the Notice of Discontinuance, prior to any written order being entered, to avoid the consequences of that ruling. (See Nov. 18, 2025 Tr.). Courts have repeatedly deemed the practice of discontinuing an action that had already been disposed of, in order to circumvent an adverse determination to be improper. Option One Mtge. Corp. v Rose, 240 AD3d 603, 605 (2d Dept. 2025); Baez v Parkway Mobile Homes, Inc., 125 AD3d 905, 908 (2d Dept. 2015); NBN Broadcasting, Inc. v Sherdan Broadcasting Networks, Inc., 240 AD2d 319, 319 (1st Dept, 1997). As such, Plaintiff's motion to discontinue under CPLR 3217(b) is denied.

E N T E R

J.S.C.