§ 3217 — Voluntary discontinuance

New York § 3217

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 32: Accelerated Judgment

Text

Rule 3217. Voluntary discontinuance. (a) Without an order. Any party\nasserting a claim may discontinue it without an order\n 1. by serving upon all parties to the action a notice of\ndiscontinuance at any time before a responsive pleading is served or, if\nno responsive pleading is required, within twenty days after service of\nthe pleading asserting the claim and filing the notice with proof of\nservice with the clerk of the court; or\n 2. by filing with the clerk of the court before the case has been\nsubmitted to the court or jury a stipulation in writing signed by the\nattorneys of record for all parties, provided that no party is an\ninfant, incompetent person for whom a committee has been appointed or\nconservatee and no person not a party has an interest in the subject\nmatter of the action; or\n 3. by filing with the clerk of the court before the case has been\nsubmitted to the court or jury a certificate or notice of discontinuance\nstating that any parcel of land which is the subject matter of the\naction is to be excluded pursuant to title three of article eleven of\nthe real property tax law.\n (b) By order of court. Except as provided in subdivision (a), an\naction shall not be discontinued by a party asserting a claim except\nupon order of the court and upon terms and conditions, as the court\ndeems proper. After the cause has been submitted to the court or jury\nto determine the facts the court may not order an action discontinued\nexcept upon the stipulation of all parties appearing in the action.\n (c) Effect of discontinuance. Unless otherwise stated in the notice,\nstipulation or order of discontinuance, the discontinuance is without\nprejudice, except that a discontinuance by means of notice operates as\nan adjudication on the merits if the party has once before discontinued\nby any method an action based on or including the same cause of action\nin a court of any state or the United States.\n (d) All notices, stipulations, or certificates pursuant to this rule\nshall be filed with the county clerk by the defendant.\n (e) Effect of discontinuance upon certain instruments. In any action\non an instrument described under subdivision four of section two hundred\nthirteen of this chapter, the voluntary discontinuance of such action,\nwhether on motion, order, stipulation or by notice, shall not, in form\nor effect, waive, postpone, cancel, toll, extend, revive or reset the\nlimitations period to commence an action and to interpose a claim,\nunless expressly prescribed by statute.\n