If a plaintiff reassesses the strength of its case prior to the expiration of the time prescribed by CPLR § 3217(a) and decides the drawbacks of proceeding outweigh the benefits, then a simple notice of discontinuance, served upon all the parties in the case, suffices to discontinue the action. If, on the other hand, this time has expired, voluntary discontinuance can only be accomplished by either a stipulation of discontinuance signed by all the attorneys of record for all the parties or by motion to the court. This can make the voluntary discontinuance increasingly difficult, and somewhat more costly, if there are multiple defendants or third-party actions. Therefore, if within the first 20 days after completion of service an answer is received pointing out serious deficiencies in the complaint that cannot be easily corrected with a motion to amend, a plaintiff is best served by immediately filing its notice of discontinuance and serving it on all answering parties. To avoid providing the plaintiff this unintended benefit, defense attorneys may find it to their client’s benefit to wait as close as possible to 20 days after the completion of the service of the summons and complaint before they file a formal answer with the court.
At least two additional pieces of cautionary advice are warranted for the litigant intending to voluntarily discontinue. If the party intending to discontinue its action by notice of discontinuance has once before discontinued the action by any other method and the matter was based on or included the same cause of action in any state, regardless of the notice of discontinuance language as “without prejudice,” the latter discontinuance by notice will operate as an adjudication on the merits. Therefore, before filing notice pursuant to CPLR § 3217(a), the diligent litigator must ensure that no prior discontinuance of the same action has previously occurred or otherwise risk foreclosing his or her client’s right to pursue the action again in the future.
Lastly, if your plaintiff is a parent or guardian representing the interests of an infant or incapacitated person, a simple stipulation of settlement will not suffice to discontinue the action. The court has a responsibility as a “guardian of the public interest” to oversee the interests of infants and incompetents, and any discontinuance of an action brought on their behalf will require court intervention and must be done only by motion.
While voluntary discontinuance may appear simple, proper preparation can avoid poor performance and possible malpractice.