CPLR § 3217 Voluntary Discontinuance: The New York Practitioner's Guide

Last reviewed: September 2026. Originally published June 17, 2017.

Legal Update (September 2026): The notice deadline below reflects the amendment effective January 1, 2012, discussed in Harris. The foreclosure discussion incorporates Van Dyke (2025). Neither development makes discontinuance a way to erase an adverse ruling.

What CPLR § 3217 Says

Start with the route to discontinuance, then check what it leaves behind. Serving a notice, signing a stipulation and asking for a court order are different acts.

Under CPLR 3217:

• Notice, subdivision (a)(1): Serve all parties before a responsive pleading is served. If no responsive pleading is required, the deadline is twenty days after service of the pleading asserting the claim. File the notice with proof of service.
• Stipulation, subdivision (a)(2): File a writing signed by the attorneys of record for all parties before the facts are submitted to the court or jury. Check the statutory restrictions involving infants, specified protected persons and nonparty interests.
• Court order, subdivision (b): The court may impose terms. After the cause is submitted for factual determination, discontinuance requires the stipulation of all parties appearing.

Subdivision (c) generally makes discontinuance without prejudice unless otherwise stated. Its exception concerns a notice following an earlier discontinuance, by any method, of an action on the same cause in a state or federal court. That notice operates as an adjudication on the merits. Review the previous disposition before choosing the next procedure.

What Harris decided

In Harris v Ward Greenberg Heller & Reidy LLP, 151 AD3d 1808 (4th Dept 2017), the plaintiff served notices before the return date of defendants’ pre-answer dismissal motions. The Fourth Department reversed the order treating those notices as untimely. A CPLR 3211 motion is not a responsive pleading.

The opinion also explains the 2012 deadline change: the former twenty-day alternative no longer ends the notice window where a responsive pleading is required. New York’s statute does not add a summary-judgment-motion cutoff to subdivision (a)(1).

Pleadings under CPLR 3011 include an answer, replies to designated counterclaims, interpleader pleadings and other specified pleadings. A motion is a different procedural document. In personal injury litigation as elsewhere, check service dates and the actual case posture rather than treating every defensive filing as an answer.

Jason’s original commentary

This passage is preserved from the earlier post. It concerns informal attempts to end a case; it is not a substitute for the statutory requirements.

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.

Court permission, prejudice and fees

Expedite Video Conferencing v Botello, 67 AD3d 961 (2d Dept 2009), affirmed discretionary discontinuance of a contract action. No special circumstances were shown. The decision applies the standard concerning prejudice to a substantial right or other improper consequences; it does not promise a second attempt whenever litigation goes badly.

In American Transit v Roberson, 114 AD3d 821 (2d Dept 2014), the court changed the discontinuance to without prejudice but left the award of costs and attorney fees in place. The record did not justify barring a second action in another venue. Jason’s 2014 account of that appeal supplies the historical litigation context. The result is not blanket permission to evade an unfavorable order.

Walden-Bailey Chiropractic v Erie, 50 Misc 3d 51 (App Term 2015), followed a different sequence. Civil Court granted discontinuance without prejudice in 2013. Erie later sought relief and obtained attorney fees on appeal in 2015, after three years of defense work. The amount was remitted for determination through the discontinuance date. The opinion does not separately resolve every fee category, including work on a discontinuance application. Keep that limit in view when reading the original fee note.

Refiling and preclusion

Support Billing v State Farm applied a with-prejudice stipulation to a later action involving identical claims. The stipulation contained no exception preserving that action. Read the 2008 procedural roundup for the historical note, and the opinion for what the court decided.

A without-prejudice disposition also needs a limitations check. CPLR 205(a) excludes voluntary discontinuance from its six-month recommencement provision. The separate mortgage provision, CPLR 205-a, also excludes it.

In assigned no-fault litigation, do not infer the fate of a patient’s separate claim from a provider’s loss alone. Mid Atlantic Medical v Harleysville decided the provider’s failure to rebut proof of vehicle noninvolvement. It did not decide a later bodily-injury or uninsured-motorist action. Our 2009 commentary on that coverage dispute expresses a broader concern; it should not be read as a holding requiring immediate discontinuance.

Latest developments

Option One Mortgage v Rose, 240 AD3d 603 (2d Dept 2025), affirmed discontinuance with prejudice where the applicant tried to circumvent an adverse determination in an already-disposed action. That procedural history matters more than a general preference for permitting withdrawal.

Foreclosure cases also require the post-FAPA rules. In Van Dyke v U.S. Bank, the Court of Appeals held the relevant FAPA provisions retroactive and rejected the constitutional challenges as applied there. CPLR 3217(e) prevents discontinuance from restarting the covered limitations period unless a statute expressly permits it.

Ditech Financial v Temple distinguishes discontinuance from a qualifying bilateral loan modification. The Third Department relied on a modification executed within months of the 2008 acceleration, not one signed after the six-year period expired. A withdrawal and a borrower’s written agreement should not be treated as interchangeable.

Cases in this topic

This directory contains three companion notes, published from 2009 through 2015. With this 2017 overview, the legacy cohort has four articles. Dates below are publication dates. Older commentary is preserved as history; the current rule and the limits of each decision are explained above.

Court permission and refiling

• Roberson: without prejudice, with costs and fees — 2014-02-22
• Expedite Video: discretion and the absence of special circumstances — 2009-11-26

Defense fees

• Walden-Bailey: defense fees awarded on appeal — 2015-10-30

Connect to the Encyclopedia

Return to the Legal Encyclopedia for other procedural topics. These dated notes preserve the archive; they are not interchangeable statements of today’s rule.

• Expedite Video: the 2009 court-permission decision
• Roberson: the 2014 appeal and venue context
• Walden-Bailey: the 2015 fee ruling and original commentary
• Support Billing: the with-prejudice stipulation discussed in 2008
• Mid Atlantic Medical: the 2009 coverage note, with the limitation explained above

For review of a particular notice, stipulation or discontinuance order, contact the firm. Bring the pleadings, proof of service, prior dispositions and relevant dates.