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

CPLR 3217 governs voluntary discontinuances in New York civil litigation, providing plaintiffs with a statutory right to withdraw their claims under specific circumstances. The statute distinguishes between discontinuances as of right, which require no court permission, and discontinuances by court order or stipulation. Under CPLR 3217(a)(1), a plaintiff may discontinue an action without an order by serving upon all parties a notice of discontinuance at any time before a responsive pleading is served or within twenty days after service of the pleading asserting a counterclaim, whichever is earlier. This right represents a valuable procedural tool allowing plaintiffs to strategically withdraw cases when circumstances change, settlement negotiations progress, or litigation strategy evolves.

The critical question frequently arising in practice concerns what constitutes a “responsive pleading” that terminates plaintiff’s absolute right to discontinue without court permission. Defendants sometimes seek to curtail this right by filing pre-answer motions to dismiss under CPLR 3211, arguing that such motions should be treated as responsive pleadings that eliminate plaintiff’s unilateral discontinuance option. This tactical maneuver, if successful, would force plaintiffs to seek court permission or defendant’s consent before discontinuing, potentially exposing plaintiffs to conditions such as payment of defendant’s costs and attorneys’ fees. The Fourth Department’s decision in Harris v Ward Greenberg Heller & Reidy LLP directly addressed whether a CPLR 3211 motion to dismiss qualifies as a responsive pleading under CPLR 3217.

Case Background: Harris v Ward Greenberg Heller & Reidy LLP

The plaintiffs in Harris filed multiple legal malpractice actions against law firms and served notices of discontinuance after defendants had filed pre-answer motions to dismiss pursuant to CPLR 3211. Defendants contended that their motions to dismiss constituted responsive pleadings, thereby depriving plaintiffs of the right to discontinue as of right under CPLR 3217(a)(1). The trial court agreed with defendants and denied plaintiffs’ notices of discontinuance as untimely. Plaintiffs appealed, arguing that the plain language of the CPLR distinguishes between motions and responsive pleadings, and that only an actual answer or other pleading defined by CPLR 3011 could terminate their statutory right to discontinue without permission.

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.

Legal Significance

The Fourth Department’s holding in Harris provides essential clarity on the scope of plaintiff’s discontinuance rights under CPLR 3217(a)(1). By analyzing the statutory definitions within the CPLR framework, the court confirmed that the Legislature intentionally distinguished between pleadings and motions throughout the civil practice statutes. CPLR 3011 defines pleadings to include only the complaint, answer, reply, and a third-party complaint and answer, explicitly excluding motions from the definition. CPLR 2211 separately defines a motion as an application for an order, reinforcing the categorical distinction.

The court’s textual analysis of CPLR 3211 itself proves particularly instructive. CPLR 3211(d) and (e) both refer to responsive pleadings as separate and distinct from motions to dismiss, demonstrating that the Legislature understood these procedural devices to serve different functions. When CPLR 3211(d) authorizes courts to deny dismissal motions while allowing parties to assert objections in their responsive pleadings, it necessarily presumes that the motion itself is not a responsive pleading. Similarly, CPLR 3211(e) permits parties to move on enumerated grounds “at any time before service of the responsive pleading is required,” again treating the motion as a preliminary procedural step distinct from the responsive pleading.

This interpretation protects plaintiff’s statutory right to discontinue actions strategically before incurring the expense and burden of full litigation. It prevents defendants from using pre-answer motions as tactical devices to trap plaintiffs in litigation when plaintiffs determine that pursuing the claim no longer serves their interests, whether due to settlement possibilities, case evaluation reassessment, or strategic considerations.

Practical Implications for Litigants

For plaintiffs, Harris confirms the right to serve notices of discontinuance even after defendants file pre-answer CPLR 3211 motions. When faced with a motion to dismiss, plaintiffs retain flexibility to discontinue the action without prejudice before serving their responsive papers on the motion, preserving the option to refile if statute of limitations permits. This right should not be exercised casually or communicated informally. Proper procedure requires serving a formal notice of discontinuance on all parties in compliance with CPLR 3217’s requirements, not merely sending letters to the court declaring the matter discontinued.

For defendants, Harris means that filing a pre-answer motion to dismiss does not prevent plaintiff from discontinuing the action before serving an answer. Defense counsel should not rely on CPLR 3211 motions to force plaintiffs into litigation or to create leverage for settlement discussions that include cost-shifting provisions. Defendants seeking to preserve their investment in motion practice may need to consider expedited briefing schedules or prompt answers that preserve defenses while eliminating plaintiff’s unilateral discontinuance option. However, defendants should carefully evaluate whether answering rather than moving pre-answer serves their strategic interests, as it waives certain CPLR 3211 defenses that must be raised by motion if not included in the answer.

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.