Bank of New York Mellon v. Whitty , 955 N.Y.2d 905 ( 2012 )

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 [2003]). We have reviewed defendant’s remaining contentions and conclude that they are either without merit or not preserved for our review. Present — Smith, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.