Pre-answer motion does not circumvent right to effectuate a 3217 discontinuance

Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970 (4th Dept. 2017)

“We conclude that the notices of discontinuance were not untimely because a motion to dismiss pursuant to CPLR 3211 is not a “responsive pleading” for purposes of CPLR 3217 (a) (1). A motion pursuant to CPLR 3211 does not fall within the meaning of a “pleading” as defined by CPLR 3011. Rather, a “motion” is defined in the CPLR as “an application for an order” (CPLR 2211). Indeed, the terms “responsive pleading” and “motion to dismiss pursuant to CPLR 3211” are not used interchangeably in the CPLR but, rather, are treated as distinct, separate items. For instance, CPLR 3211 (d) provides that, under certain circumstances, “the court may deny the [CPLR 3211] motion, allowing the moving party to assert the objection in his responsive pleading” ([emphasis added]). Likewise, CPLR 3211 (e) provides that, “[a]t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in [CPLR 3211 (a)].” It is clear from the language used throughout the CPLR that the Legislature did not intend a CPLR 3211 motion to be considered a “responsive pleading.”

So many practitioners just do not understand CPLR 3217.   I have seen where a party, seeing life was not going his way, wrote a letter to the judge that the matter is hereby discontinued, the motion is moot etc.  This cavalier attitude permeates this profession.

Discontinuance (CPLR 3217)

Walden-Bailey Chiropractic v Erie Ins. Co., 2015 NY Slip Op 25353 (App. Term 2d Dept. 2015)

“Generally, courts are reluctant to compel a party to litigate (see DuBray v Warner Bros. Records, 236 AD2d 312, 314 [1997]), and it is well settled that courts have the discretion to grant a motion for discontinuance, without prejudice, if no special circumstances exist, such as prejudice to a substantial right of the defendant or other improper consequences”

“Notwithstanding the foregoing, inasmuch as it is uncontroverted that defendant had defended the instant action for three years during which time it had made numerous motions, engaged in discovery practice, and repeatedly appeared in court, defendant is entitled to recover the reasonable attorney’s fees it incurred in its defense of the instant action up to the date of discontinuance, in order to eliminate any possible prejudice attributable to the discontinuance”

This is interesting because Walden Bailey is a Buffalo facility.  The fact that an action was brought in Queens and later in Bronx should cause eyebrows to raise a bit.  Mine did.  What is interesting is the portion about attorney fees.  We know that is allowed.  The Court has delimited the extent of the attorney fees: “commencement to date of discontinuance”

Discontinuance without prejudice

American Tr. Ins. Co. v Roberson, 2014 NY Slip Op 01144 (2d Dept. 2014)

“In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice (see Tucker v Tucker, 55 NY2d 378, 383-384;Wells Fargo Bank, N.A. v Fisch, 103 AD3d 622; Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 793-794; Valladares v Valladares, 80 AD2d 244, 258, affd on other grounds 55 NY2d 388). Contrary to the defendants’ contention, the plaintiff was not required to demonstrate any basis for seeking a voluntary discontinuance (see Larchmont Fed. Sav. & Loan Assn. v Ebner, 89 AD2d 1009). Furthermore, there was no showing that the rights of the defendants or others would be prejudiced if the plaintiff were permitted to commence a second action for the same relief in another venue”

This is an interesting case, but you would not know it from reading the decision.  Procedurally, this case was commenced in Supreme, Nassau County.  Defendant answered, and while this is hard for many to believe (and I can share this now), most Nassau Supreme judges follow(ed) Unitrin.  One or two judges were wishy washy on this point.  So a decision was made to file the same action in Supreme Court, Manhattan.  It is my right to chose were I want a case heard and to engage in forum shopping.   We moved to discontinue and a magical cross-motion containing an affidavit of service saying it was served on me never made its way to my office.  By the way, this is why e-filing is great – you cannot fall victim to these non-existent motions and oppositions.  I learned the cross-motion sought discontinuance with prejudice, costs, attorneys fees, etc., but this was when we learned that we lost our motion.

Figuring the motion would be unconditionally granted, the Manhattan action was filed and we obtained summary judgment and a non-coverage declaration.

As you now know, the Nassau County action was discontinued with prejudice, with costs.  Defendant, having prevailed,  moved to void the declaration of non-coverage in the Manhattan action.   I filed an appeal in the Nassau County action, and cross-moved to stay the Manhattan application to void our declaration in Manhattan.  Supreme Court in Manhattan granted the stay and the Nassau order was modified so that the discontinuance is without prejudice.

As to filing Nassau County, it might not be a bad idea. (1) Inasmuch as the most recent precedent, Clennon, cites favorably to Unitrin; (2) Lucas in the First Department cites to NYP v. Cwide; and (3) the Second Department in one of the most recent Geico cases (see prior post on blog) held open a reconsideration of Lincoln General upon an appropriate record, it appears that Unitrin may be followed in both Departments.

Incidentally, the Court found there was no prejudice if we were allowed to file this action in the First Department.  Not sure what if anything you can read into that line, since Defendant made it clear that Plaintiff could not obtain the same declaration in Nassau that it could (and did) in Manhattan.  Therefore, Defendant argued that it was prejudiced.  Assuming Lincoln General was still good law, then Defendant was correct that it was prejudiced.  However, if Unitrin is now the guiding precedent, then Defendant could not be prejudiced.

A plaintiff may voluntary discontinue an action on motion absent prejudice to the defendant

The Appellate Division, in Expedite Video Conferencing Servs., Inc. v Botello, 2009 NY Slip Op 08781 (2d Dept. 2009), held the following:

“The determination of a motion for leave to voluntarily discontinue an action, without prejudice, pursuant to CPLR 3217(b), rests within the sound discretion of the court (see Tucker v Tucker, 55 NY2d 378, 383). In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted (see Tucker v Tucker, 55 NY2d 378; Eugenia VI Venture Holdings, Ltd. v Maplewood Equity Partners, L.P., 38 AD3d 264; Parraguierre v 27th St. Harding, LLC, 37 AD3d 793; Mathias v Daily News, 301 AD2d 503; Urbonowicz v Yarinsky, 290 AD2d 922, 923; County of Westchester v Welton Becket Assoc., 102 AD2d 34. Here, the Supreme Court properly exercised its discretion in granting the plaintiff’s motion to voluntarily discontinue the action, as there was no showing of special circumstances.” It thus follows that should a plaintiff or counterclaimant see thinks going bad pretty quickly, they can unilaterally decide to abort the mission without prejudice and try again at a later date, provided there is no statute of limitations issue.”

It thus follows that should a plaintiff or counterclaimant see things going badly, he or she may abort the mission on motion and get a second chance at a later date.