Tag Archives: discontinuances

Baez v Parkway Mobile Homes, Inc.,

125 AD3d 905 [2d Dept., 2015]

This is the first of a series of three notes on voluntary discontinuances. Today’s case concerns when a voluntary discontinuance should, or more properly should not, be allowed. Next will be a discussion of when a voluntary discontinuance should be considered a disposition on the merits for res judicata purposes. Finally, a consideration of when the court should impose some form of costs or attorney’s fees on the plaintiff as a condition of discontinuance.

CPLR 3217 (a) allows the plaintiff to withdraw a claim without court order within a brief window after asserting it, or by stipulation of all appearing parties (it applies to any party asserting a claim, but let’s keep things simple). If any appearing party will not stipulate, an order is required. CPLR 3217 (b) allows the motion at any time before submission of the case to the court or jury, and specifies that the court may impose terms and conditions on the discontinuance. It does not otherwise specify when the discontinuance should be allowed or not.

Case law establishes that a voluntary discontinuance should ordinarily be allowed, unless there is a specific reason not to.

“ordinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted.” (Tucker v Tucker, 55 NY2d 378, 383 [1982])

Tucker itself presented such special circumstances, as the plaintiff in a divorce action sought to avail herself of the more favorable provisions of the Equitable Distribution statutes, in a manner contrary to the legislative scheme. Plaintiff had in fact commenced a second action, so that no one was compelling her to litigate. Rather, under the circumstances she was stuck with her first action and its controlling law.

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