Key Takeaway
Court rules on voluntary discontinuance without prejudice in insurance case, discussing plaintiff's right to forum shopping and procedural requirements under CPLR 3217.
This article is part of our ongoing discontinuances coverage, with 4 published articles analyzing discontinuances issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Looking for the complete rule? This post analyzes one voluntary discontinuance decision. For the full practitioner’s guide to CPLR § 3217 — as-of-right deadlines, leading cases, and practice pointers — see CPLR § 3217 Voluntary Discontinuance: The New York Practitioner’s Guide.
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.
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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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Nov 26, 2009Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a discontinuances matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
