Key Takeaway
Court rules pre-answer CPLR 3211 motion to dismiss is not a responsive pleading, allowing plaintiff to discontinue action under CPLR 3217(a)(1) even after motion filed.
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 motion, allowing the moving party to assert the objection in his responsive pleading” (). Likewise, CPLR 3211 (e) provides that, “t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in .” 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.
Related Articles
- A plaintiff may voluntary discontinue an action on motion absent prejudice to the defendant
- Discontinuance without prejudice
- Discontinuance (CPLR 3217)
Legal Update (February 2026): While the core holding in Harris v Ward Greenberg Heller & Reidy LLP regarding CPLR 3211 motions not constituting responsive pleadings under CPLR 3217 remains valid, practitioners should verify current provisions as the CPLR sections discussed (3211, 3217, 3011, and 2211) may have been subject to amendments or procedural updates since 2017. Court interpretations and practice standards regarding discontinuance procedures may have evolved through subsequent appellate decisions.
