Voluntary Discontinuance, Settlement, and Offers to Compromise

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 309-330

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