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Bank of New York Mellon, Formerly Known As Bank of New York, As Trustee For the Certificate Holders Cwalt v. Jean Whitty

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 28, 2012

BANK OF NEW YORK MELLON, FORMERLY KNOWN AS BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT,
INC., ALTERNATIVE LOAN TRUST 2006-16 CB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-16 CB, PLAINTIFF-RESPONDENT,
v.
JEAN WHITTY, ALSO KNOWN AS JEAN C. WHITTY, DEFENDANT-APPELLANT, ET AL.,
DEFENDANTS.

Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered May 10, 2012.

Bank of N.Y. Mellon v Whitty

Released on December 28, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.

The order, among other things, granted the motion of defendant Jean Whitty, also known as Jean C. Whitty, to dismiss the complaint and dismissed the complaint without prejudice.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this mortgage foreclosure action, Jean Whitty, also known as Jean C. Whitty (defendant), moved to dismiss the complaint with prejudice. Supreme Court granted that part of the motion to dismiss the complaint, but ordered that it be dismissed without prejudice. We affirm. Contrary to defendant's contention, we conclude under the circumstances presented here that the court did not abuse its discretion in dismissing the complaint without prejudice (see generally Castillo v County of Suffolk, 307 AD2d 305, 305). We have reviewed defendant's remaining contentions and conclude that they are either without merit or not preserved for our review. Entered: December 28, 2012 Frances E. Cafarell Clerk of the Court

20121228

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