Discontinuance (CPLR 3217)

Key Takeaway

In Walden-Bailey, discontinuance without prejudice survived, but the defendant obtained attorney-fee relief on appeal. The fee ruling did not rest on a finding of improper forum shopping. Read the decision.

Last reviewed: September 2026 (editorial source check). Originally published October 30, 2015. The original commentary below is separate from the revised case history.

The 2015 case: discontinuance and defense fees

Walden-Bailey Chiropractic v Erie Insurance Co., 50 Misc 3d 51, 2015 NY Slip Op 25353, was decided October 19, 2015 by the Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts.

The provider sought assigned no-fault benefits. This note addresses the fee issue in that case, not every route to voluntary discontinuance. For the broader framework, see the CPLR 3217 practitioner’s guide.

What happened in the courts?

The procedural sequence matters. Erie was the appellant—not the provider challenging a fee condition already imposed by the trial court.

1. February 6, 2013: Civil Court granted the provider’s oral application to discontinue without prejudice.
2. January 7, 2014: Civil Court denied Erie’s later request to vacate or modify that order and implicitly denied fees and sanctions.
3. October 19, 2015: On Erie’s appeal, the Appellate Term granted attorney-fee relief and remitted the amount for determination. Official opinion.

Keep the venue allegation separate from the holding

The Bronx action came after the Queens action. The court held that the record “does not establish” that the provider sought the discontinuance in order to sue in Bronx County, and it awarded defense fees anyway, on the strength of three years of defense work through discontinuance. Opinion, pages 53–54.

Three years of motions, discovery and appearances supported the fee relief. A suspicion about the plaintiff’s strategy and proof supporting a fee application were not interchangeable.

Jason’s original commentary: October 2015

The following author comment is preserved from the original note, with paragraph breaks added. Its reaction to venue choice is commentary, not a finding that the court made.

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”

Later editorial context: use the decision narrowly

CPLR 3217(b) addresses discontinuance by court order and permits terms and conditions the court deems proper. That is different from discontinuance without an order under subdivision (a).

The distinction belongs at the start of any comparison. A dispute over conditions on a court-ordered discontinuance does not, by itself, answer a question about when a notice of discontinuance may be served.

For this case, keep the fee award’s stated endpoint attached to the decision. Do not turn it into an uncited rule resolving every possible category of fees in every later motion.

A record checklist for the fee issue

A useful comparison should identify:

• The original discontinuance application and order.
• The later motion, including each form of relief requested.
• The defense work and billing period the applicant can document.
• Evidence supporting any alleged improper purpose, distinct from suspicion.
• The appellate disposition and any remand concerning the amount.

This checklist reflects the questions raised by the note; it is not a fee-entitlement formula.

For a contrasting historical discussion, see the 2014 note on discontinuance and refiling. The 2017 guide addresses the broader procedural framework; each linked case should be read on its own facts.

These issues arise in our no-fault defense practice. For related procedural subjects, browse the legal encyclopedia.

To discuss a particular discontinuance order or fee application, request a Free Case Review. This historical case note is educational and does not determine the result of a pending matter.