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.
