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

1318
CA 12-01228
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


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                            MEMORANDUM AND ORDER

JEAN WHITTY, ALSO KNOWN AS JEAN C. WHITTY,
DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


RICHARD E. CLARK, PLLC, LIVERPOOL (RICHARD E. CLARK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BLANK ROME LLP, NEW YORK CITY (ADAM M. SWANSON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


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