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In re Catherine Commons, LLC

Supreme Court of New York, Second Department

January 17, 2018

In the Matter of Catherine Commons, LLC, appellant,
v.
Town of Orangetown, etc., et al., respondents-respondents, et al., Nyack Union Free School District, intervenor-respondent-respondent. Index Nos. 5002/11, 33561/12, 33437/13, 32944/14

         D54413 C/hu

          Mark F. Goodfriend (Susan Cooper, Nyack, NY, of counsel), for appellant.

          Dennis D. Michaels, Deputy Town Attorney, Orangeburg, NY, for respondents-respondents, and Keane & Beane, P.C., White Plains, NY (Judson K. Siebert of counsel), for intervenor-respondent-respondent (one brief filed).

          MARK C. DILLON, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In four related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2011, 2012, 2013, and 2014, the petitioner appeals from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated December 22, 2015, as denied its motion pursuant to CPLR 3217(b) to discontinue the proceedings with respect to one of the subject tax lots, and, by permission, from so much of the order as, sua sponte, directed the parties to merge two of the subject tax lots.

         ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing the parties to merge two of the subject tax lots; as so modified, the order is affirmed, with one bill of costs to the respondents-respondents and the intervenor-respondent-respondent.

         The petitioner owns, among other things, a townhouse building containing seven individual townhouse units located on two adjacent tax lots in the Town of Orange town, in the

          Village of Nyack, Rockland County. It commenced tax certiorari proceedings for those two lots, as well as a third unrelated tax lot, challenging the amount of taxes assessed for those properties in the assessment rolls of 2011, 2012, 2013, and 2014. The petitioner moved pursuant to CPLR 3217(b) to discontinue the proceedings with respect to one of the tax lots. The respondents, the Town of Orangetown, the Town of Orangetown Assessor, and the Town of Orangetown Board of Assessment Review, and the intervenor-respondent, Nyack Central School District (hereinafter collectively the respondents), opposed the motion, arguing, inter alia, that their ability to defend the proceedings would be prejudiced by the discontinuance.

         The Supreme Court denied the motion, and, sua sponte, directed the parties to merge two of the subject lots. The petitioner appeals. We modify.

         A motion for leave to discontinue an action is addressed to the sound discretion of the court (see Tucker v Tucker, 55 N.Y.2d 378; Turco v Turco, 117 A.D.3d 719; GMAC Mtge., LLC v Bisceglie, 109 A.D.3d 874), and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results (see Jamaica Hosp. Med. Ctr., Inc. v Oxford Health Plans [NY], Inc., 58 A.D.3d 686; Kaplan v Village of Ossining, 35 A.D.3d 816; DuBray v Warner Bros. Records, 236 A.D.2d 312).

         Here, the Supreme Court providently exercised its discretion in denying the petitioned s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents' ability to defend the assessment on the remaining parcel.

         However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing the parties to merge two of the subject tax lots. ''Generally, a court may, in its discretion, 'grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'" (Clair v Fitzgerald,63 A.D.3d 979, 980, quoting Frankel v Stavsky,40 A.D.3d 918, 918-919; see Matter of Myers v Markey, 74 A.D.3d 1344, ...


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