JERICHO GROUP, LTD. plf-res, v. MID-TOWN DEVELOPMENT LIMITED PARTNERSHIP def-ap, MICHAEL A. SZEGDA def

15312. JERICHO GROUP, LTD. plf-res, v. MID-TOWN DEVELOPMENT LIMITED PARTNERSHIP def-ap, MICHAEL A. SZEGDA def — Phillips Nizer LLP, New York (Perry S. Galler of counsel), for ap — Cohen Tauber Spievack & Wagner P.C., New York (Ira Daniel Tokayer of counsel), for res — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered May 12, 2014, which denied as moot defendantsappellants' motion to dismiss the complaint with prejudice and for an injunction against further related litigation and costs and sanctions against plaintiffs, and permitted plaintiffs to discontinue the action without prejudice, unanimously reversed, on the law, without costs, plaintiffs' notice of discontinuance deemed a nullity, the complaint reinstated, defendants' motion granted to the extent of dismissing the action as against them with prejudice, and the action remanded for further proceedings consistent herewith. The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.

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15312. JERICHO GROUP, LTD. plf-res, v. MID-TOWN DEVELOPMENT LIMITED PARTNERSHIP def-ap, MICHAEL A. SZEGDA def — Phillips Nizer LLP, New York (Perry S. Galler of counsel), for ap — Cohen Tauber Spievack & Wagner P.C., New York (Ira Daniel Tokayer of counsel), for res — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered May 12, 2014, which denied as moot defendantsappellants’ motion to dismiss the complaint with prejudice and for an injunction against further related litigation and costs and sanctions against plaintiffs, and permitted plaintiffs to discontinue the action without prejudice, unanimously reversed, on the law, without costs, plaintiffs’ notice of discontinuance deemed a nullity, the complaint reinstated, defendants’ motion granted to the extent of dismissing the action as against them with prejudice, and the action remanded for further proceedings consistent herewith. The Clerk is directed to enter judgment in defendants’ favor dismissing the complaint.

The motion court erred in denying defendants’ motion as moot. Plaintiffs’ notice of withdrawal of the action, in effect a discontinuance, was untimely because it was served well after defendants filed their motion to dismiss (see CPLR 3217[a][1]) and “was apparently served to avoid an adverse decision on the pending motion to dismiss the complaint with prejudice” (Rosenfeld v. Renika Pty. Ltd., 84 AD3d 703 [1st Dept 2011]). Thus, the notice was ineffective and a nullity (see BDO USA, LLP v. Phoenix Four, Inc., 113 AD3d 507, 511 [1st Dept 2014]; Citidress II Corp. v. Hinshaw & Culbertson LLP, 59 AD3d 210, 211 [1st Dept 2009]).

JERICHO GROUP, LTD. plf-res, v. MID-TOWN DEVELOPMENT LIMITED PARTNERSHIP def-ap, MICHAEL A. SZEGDA def

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