Voluntary Discontinuance, Settlement, and Offers to Compromise

AuthorEdward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
Pages309-330
CHAPTER 10
Voluntary Discontinuance,
Settlement, and Offers to
Compromise
§10:01 New York Trial Notebook 10-2
I. GENERAL POINTS
§10:01 Authority
CPLR 3217 governs voluntary discontinuances
of a claim or action. “Voluntary dismissal” or
“nonsuit” are terms that are employed on occasion,
usually in older cases, and mean the same thing.
[See Weisinger v. Berfond, 21 Misc2d 788, 792,
198 NYS2d 799, 804 (Sup Ct Kings County 1960)
(no distinction between a voluntary discontinuance
and a voluntary nonsuit); Schintzuis v. Lackawanna
Steel Co., 224 NY 226, 120 NE 137 (1918); Roland
v. Hubbard, 36 AD2d 599, 599, 318 NYS2d
644, 645 (1st Dept 1971) (although plaintiff
failed to present a prima facie case, the dismissal
should have been without prejudice, as “under the
circumstances, plaintiff should have been afforded
the opportunity by means of a simple nonsuit” to
procure additional evidence if available).]
§10:02 Only by Party Asserting
Claim
Only the party asserting the claim may
voluntarily discontinue it. [Shamley v. ITT Corp.,
67 NY2d 910, 501 NYS2d 810 (1986).] This
includes a plaintiff or a defendant bringing a
counterclaim, cross-claim, or third party claim.
§10:03 Methods
CPLR 3217 provides four methods of obtaining
a voluntary discontinuance:
By notice to all parties before a responsive
pleading is served or within 20 days after
service of the pleading asserting the claim.
[See §10:20.]
By stipulation of all parties before the
case is submitted to the jury or court. [See
§10:21.]
By court order before the case is submitted
to the jury or court. [See §10:30 ff.]
By court order and stipulation of all parties
after the case is submitted to the jury or
court. [See §10:50 ff.]
NOTE:
The defendant must file all notices,
stipulations, or certificates regarding voluntary
discontinuances with the county clerk. [CPLR
3217(d).]
FORMS:
Form 10:10 Notice for Voluntary
Discontinuance
Form 10:20 Stipulation to Discontinue
Action
[§§10:04–10:09 Reserved]
II. PURPOSE AND EFFECT
§10:10 Reasons to Discontinue
Most voluntary dismissals are taken because
plaintiff has settled with one or more defendants.
However, even without having received any payment,
plaintiffs may choose to voluntarily dismiss an
action after concluding that a defendant is not
liable [see Slaybough v. Nathan Littauer Hospital,
202 AD2d 773, 608 NYS2d 745 (3d Dept 1994)],
particularly if plaintiffs want to avoid exposure to
sanctions for frivolous litigation. [CPLR 8303-a(c)
(ii); Patane v. Griffin, 164 AD2d 192, 562 NYS2d
1005 (3d Dept 1990).] Some dismissals are sought
for tactical reasons [Valladares v. Valladares, 80
AD2d 244, 258, 438 NYS2d 810, 819 (2d Dept
1981)] or to simplify the action to avoid juror
confusion. [Bateholts v. Russell, 35 AD2d 761, 315
NYS2d 104 (3d Dept 1970).] NOTE: Releasing
and discontinuing against defendant A does not
preclude a plaintiff from continuing to pursue a
party vicariously liable for defendant A. Riviello v.
Waldron, 47 NY2d 297, 307, 418 NYS2d 300, 305
(1979), Marus v. Village Medical, 51 AD3d 879,
881, 858 NYS2d 735, 736 (2d Dept 2008).
CASE EXAMPLES:
Plaintiff voluntarily discontinued the case so
he could refile in US District Court because
he thought he could get a higher award
there; the Appellate Division affirmed as
long as plaintiff paid defendant’s expenses
as well as costs. [Schimansky v. Nelson,
50 AD2d 634, 374 NYS2d 771 (3d Dept
1975).]
The appellate court affirmed the trial court’s
grant of a discontinuance without prejudice

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