The opinion
Arlus Owner LLC v Twain Time, Inc.
2025 NY Slip Op 30606(U)
February 21, 2025
Supreme Court, New York County
Docket Number: Index No. 652659/2023
Judge: Nicholas W. Moyne
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 652659/2023
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 02/21/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. NICHOLAS W. MOYNE PART 41M
Justice
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ARLUS OWNER LLC,FALU, LLC,FJLU, LLC,829 MADISON
WE TIC OWNER LLC 10/09/2024,
MOTION DATE 10/30/2024
Plaintiff,
MOTION SEQ. NO. 007 008
-v-
TWAIN TIME, INC., DECISION + ORDER ON
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 007) 203, 204, 205, 206,
207, 208, 209, 210, 211, 212, 215, 220
were read on this motion to/for DISCONTINUE .
The following e-filed documents, listed by NYSCEF document number (Motion 008) 217, 218, 221
were read on this motion to/for DISCONTINUE .
Upon the foregoing documents, it is
Motion Sequences 007 and 008 are consolidated herein for disposition. Plaintiffs, FALU,
LLC, FJLU, LLC, ARLUS OWNER, LLC and 829 MADISON WE TIC OWNER LLC,
(collectively, “plaintiffs”), commenced the underlying action against defendant, TWAIN TIME
INC. (“Twain Time”), for claims arising out of a written commercial lease agreement and
seeking access to a leased portion of the subject premises to inspect and/or perform certain work
to the exterior and/or façade of the building.
In their complaint, plaintiffs were asserting two claims: (1) a first cause of action for an
order for access; and (2) a second cause of action for breach of contract. On June 29, 2023,
Twain Time filed its answer to the complaint, asserting the following counterclaims: (1) a first
cause of action for declaratory judgment as to the premises of the lease; (2) a second cause of
action for an injunction; (3) a third cause of action for a declaratory judgment as to second
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default notice; (4) a fourth cause of action for preliminary and permanent injunction; (5) a fifth
cause of action for breach of the covenant of good faith and fair dealing; and (6) a sixth cause of
action for commercial tenant harassment, under NYC Administrative Code §22-902.
Now, in Motion Sequence 007, Twain Time, moves for an order, pursuant to CPLR §
3217 (b), to voluntarily discontinue its first, second, third, and fourth causes of action in the
counterclaims dated June 29, 2023, and, pursuant to CPLR § 6514 (a), to cancel the Notice of
Pendency, filed on July 11, 2023, against the property located at Block 1384, Lot 23 in the
County of New York and known as 829 Madison Avenue, New York, a/k/a 19 East 69th Street,
New York, New York 10021. Plaintiffs do not oppose Twain Time’s motion, advising they “do
not object to the ultimate relief requested in the Motion provided that the Court’s order granting
the Motion makes clear that the claims are ordered discontinued with prejudice so that there is no
question of their being revived (NYSCEF Doc. No. 215 ¶ 3).1
Accordingly, in Motion Sequence 008, plaintiffs also move for an order, pursuant to
CPLR § 3217 (b), to voluntarily discontinue their first cause of action for an order for access. In
their affirmation, counsel for plaintiffs asserts that the defendant advised it does not object to this
request for relief (NYSCEF Doc. No. 218).
CPLR § 3217 (b) provides that an action shall not be discontinued by a party asserting a
claim except upon order of the court and upon terms and conditions as the court deems proper.
The court has a great deal of discretion when deciding those motions to discontinue all or part of
an action (Leites v Leites, 104 AD2d 342, 343 [1st Dept 1984]). Soundly within this discretion is
1
Defendant has not opposed or otherwise responded to the plaintiffs’ request that the discontinuance of these causes
of action be with prejudice. The statute permits the court to grant a motion “upon terms and conditions” as the court
deems proper (Beigel v Cohen, 158 AD2d 339, 340 [1st Dept 1990]), which includes imposing conditions on
granting an application (New York Downtown Hosp. v Terry, 80 AD3d 493, 494 [1st Dept 2011]) or that, in
appropriate circumstances, a discontinuance may be with prejudice (NBN Broadcasting, Inc. v Sheridan
Broadcasting Networks, Inc., 240 AD2d 319, 319 [1st Dept 1997]).
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the determination of whether, and upon what terms and conditions, to grant an application to
discontinue an action under CPLR 3217(b) (Deutsche Bank Natl. Tr. Co. v Holcomb, 178 AD3d
773, 774 [2d Dept 2019]. However, absent special circumstances such as prejudice to adverse
parties, a discontinuance should be granted (Burnham Serv. Corp. v Natl. Council on
Compensation Ins., Inc., 288 AD2d 31, 32 [1st Dept 2001]), and unless a court states otherwise,
a voluntary discontinuance is without prejudice (Matter of J.M., 224 NYS3d 387 [1st Dept
2025]).
Here, both defendant and plaintiffs have shown that discontinuance of their respective
claims would not result in prejudice to a substantial right of another party, circumvent an order
of this court, avoid the consequences of a potentially adverse determination, or otherwise
produce improper results (Aurora Loan Services, LLC v Hunte, 189 AD3d 1525, 1526 [2d Dept
2020]). In support of this discontinuance, Twain Time asserts that in light of the parties’
Stipulation, which resolved the motion(s) for access along with the Yellowstone injunction,
defendant’s third and fourth causes of action are now moot (see NYSCEF Doc. No. 201; 202;
206). Additionally, Twain Time also asserts that on September 10, 2024, the parties entered a
“Rescission Agreement” rescinding the certain Lease Amendments nunc pro tunc; and therefore,
defendant’s first and second causes of action are also moot (NYSCEF Doc. No. 211). Twain
Time requests that the court order the discontinuance of the remaining counterclaims, except for
the sixth cause of action for commercial tenant harassment, and cancel the Notice of Pendency.2
Plaintiffs also seek to discontinue their first cause of action for an order of access/entry
asserting that through the parties’ Stipulation, which resolved the motion(s) relating to access
and resulted in plaintiffs ultimately gaining access, the relief sought therein has been achieved
2
In accordance with the decision and order issued by this court on August 15, 2024, the defendant’s fifth cause of
action was dismissed (see NYSCEF Doc. No. 194).
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(NYSCEF Doc. No. 188; 206). As these causes of action have either been resolved and/or
mooted by the parties’ agreement(s) or a court order, the motions may be granted in their
entirety.3
Accordingly, it is hereby
ORDERED that Motion Sequence 007, the motion by defendant, TWAIN TIME INC.,
for voluntary discontinuance and cancelling the Notice of Pendency is GRANTED, in its
entirety; and it is further
ORDERED that defendant’s first, second, third, and fourth causes of action in the
counterclaims dated June 29, 2023, are hereby discontinued with prejudice, and said causes of
action only are dismissed; and it is further
ORDERED that defendant’s first, second, third, and fourth causes of action in the
counterclaims dated June 29, 2023, are severed, and the action shall continue as to the remainder
of the claims, which shall include defendant’s sixth cause of action for commercial tenant
harassment; and it is further
ORDERED that the court having determined that cancellation is appropriate under CPLR
§ 6514 (a), Notice of Pendency herein, filed by TWAIN TIME INC. in the office of the County
Clerk of New York County on July 11, 2023, with the address of the property affected by said
Notice designated as Block 1384, Lot 23 and known as 829 Madison Avenue, New York, a/k/a
19 East 69th Street, New York, New York 10021, may be cancelled; and it is further
3
Considering the circumstances presented in the action- including, the history of the litigation, the relationship of
the parties, the extensive motion practice, and the current procedural posture, the discontinuance of these causes of
action may be with prejudice (see Brenhouse v Anthony Indus., Inc., 156 AD2d 411, 412 [2d Dept 1989]; Reid v
Brown, 165 AD3d 949, 950 [2d Dept 2018]).
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ORDERED that the County Clerk of New York County, upon service upon him of a copy
of this order together with notice of entry, shall cancel the aforesaid Notice of Pendency and
record in his records a notation of such cancellation; and it is further
ORDERED that such service upon the County Clerk shall be made in accordance with
the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for
Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website); and it is
further
ORDERED that Motion Sequence 008, the motion by plaintiffs, FALU, LLC, FJLU,
LLC, ARLUS OWNER, LLC and 829 MADISON WE TIC OWNER LLC, for voluntary
discontinuance is GRANTED, in its entirety; and it is further
ORDERED that the plaintiffs’ first cause of action asserted in their verified complaint is
hereby discontinued with prejudice, and said cause of action only is dismissed; and it is further
ORDERED that the plaintiffs’ first cause of action is severed, and the action shall
continue as to the remainder of the claims, which shall include plaintiffs’ second cause of action
in the verified complaint for breach of contract; and it is further
ORDERED that counsel are still directed to appear in Room 327, 80 Centre Street, New
York, New York 10013, for the compliance conference which has been scheduled for May 15,
2025, at 2:15 PM.
This constitutes the decision and order of the court.
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Motion Sequence 007:
2/21/2025 $SIG$
DATE NICHOLAS W. MOYNE, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
Motion Sequence 008:
2/21/2025 $SIG$
DATE NICHOLAS W. MOYNE, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 007 008
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