Discontinuance, Severance & Consolidation
Notice deadlines, court-ordered withdrawal and defense fees, with the 2025–2026 decisions distinguishing discontinuance from a reset of foreclosure limitations.
12 articles from 2009–2021 · 1 current · 0 reviewed case notes · by Jason Tenenbaum
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The explainer for this topic. Read it first; the articles below go deeper on single issues.
Older archive
Case notes as they were written at the time. They have not been re-checked against later decisions, so treat them as history and confirm the current rule before relying on one.
2021 (1)
2018 (1)
2014 (1)
Frequently asked questions
What is a voluntary discontinuance under CPLR 3217?
A voluntary discontinuance ends a claim at the request of the party who asserted it. Under CPLR 3217(a)(1), a party may discontinue without a court order by serving a notice of discontinuance on all parties and filing it with proof of service before a responsive pleading is served, or, if none is required, within 20 days after service of the pleading asserting the claim. Under CPLR 3217(a)(2), it may also be done by filing a stipulation signed by the attorneys for all parties before the case is submitted, if no party is an infant or incompetent. Otherwise, under CPLR 3217(b), a court order is required.
Can a discontinued case be refiled?
Usually yes, if the time to sue has not run. Under CPLR 3217(c), a discontinuance is without prejudice unless the notice, stipulation or order says otherwise, with one exception: a discontinuance by notice operates as an adjudication on the merits if the party has once before discontinued an action based on the same cause of action in any state or federal court. The six-month extension in CPLR 205(a) does not help, because that section expressly excludes actions terminated by voluntary discontinuance. The refiled action must therefore be commenced within the original limitations period, such as the three years in CPLR 214(5). Check the limitations date before signing any discontinuance.
What happens to counterclaims when a case is discontinued?
A plaintiff's discontinuance ends the plaintiff's claim, not the defendant's. CPLR 3217(a) speaks of any party asserting a claim discontinuing it, so the plaintiff's notice or stipulation covers only the claims the plaintiff asserted, and a counterclaim the defendant has already interposed remains unless the defendant discontinues it or the stipulation addresses it. CPLR 203(e) adds a limitations protection: where a defendant has served an answer containing a counterclaim and the action is terminated by voluntary discontinuance, the time between commencement and termination is not counted against the defendant's time to sue on that claim in another action. Address counterclaims expressly in any stipulation of discontinuance.