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

Last reviewed: June 2026

Key Takeaways

• CPLR § 3217(a)(1) gives a plaintiff the right to discontinue without a court order by serving a notice of discontinuance before the adversary serves a responsive pleading (or, under the current statute, a motion for summary judgment) — and a CPLR 3211 motion to dismiss does not cut off that right (Harris v Ward Greenberg Heller & Reidy LLP, 4th Dept. 2017).
• Once the as-of-right window closes, discontinuance requires a stipulation of all parties under § 3217(a)(2) or a court order under § 3217(b).
• A § 3217(b) motion should be granted absent “special circumstances” such as prejudice to a substantial right of the defendant — the movant does not have to give a reason (Tucker v Tucker; American Tr. Ins. Co. v Roberson, 2d Dept. 2014).
• Courts can and do condition late-stage discontinuance on payment of the defendant’s reasonable attorney’s fees from commencement through the date of discontinuance (Walden-Bailey Chiropractic v Erie Ins. Co., App. Term 2d Dept. 2015).
• A stipulation of discontinuance “with prejudice” raises a presumption of res judicata in future litigation on the same cause of action (Support Billing & Mgt. Co. v State Farm, App. Term 2d Dept. 2008).
• A discontinuance “without prejudice” preserves refiling only while the statute of limitations is still open — CPLR § 205(a)‘s six-month savings clause does not rescue a voluntarily discontinued action.

What CPLR § 3217 Says

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 stipulation or court order.

The statute creates three routes out of an action:

1. Notice as of right — § 3217(a)(1). A party asserting a claim may discontinue it without an order by serving a notice of discontinuance on all parties before a responsive pleading (or a motion for summary judgment) is served, or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service. No permission, no conditions, no explanation.
2. Stipulation — § 3217(a)(2). After the as-of-right window closes, all parties appearing in the action can stipulate to discontinuance. Whether the stipulation says “with prejudice” or “without prejudice” matters enormously — see the res judicata discussion below.
3. Court order — § 3217(b). At any stage, the claimant may move for an order of discontinuance “upon terms and conditions, as the court deems proper.” This is where the discretionary case law lives.

Subdivision (c) supplies the default preclusion rule: a voluntary discontinuance is without prejudice unless it states otherwise, with a repeat-player exception for parties who have previously discontinued an action on the same claim by notice.

The subdivisions interact in ways that routinely catch practitioners off guard — which is what most of the case law below is about.

How Courts Apply It

The As-of-Right Window: What Is a “Responsive Pleading”? — Harris

The critical question frequently arising in personal injury and other civil 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.

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.

The court’s textual analysis is worth internalizing. Under CPLR 3011, pleadings include only the complaint, the answer, the reply, and a third-party complaint and answer. Motions are excluded from this definition; CPLR 2211 separately defines a motion as an application for an order. 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. The upshot: a defendant who moves pre-answer rather than answering leaves the plaintiff’s § 3217(a)(1) escape hatch wide open.

The § 3217(b) Default Rule: Granted Absent Special Circumstances

Once the as-of-right window closes, the case law sets a strongly pro-discontinuance baseline. In Expedite Video Conferencing Servs., Inc. v Botello (2d Dept. 2009), the Second Department, applying the Court of Appeals’ standard from Tucker v Tucker, 55 NY2d 378, held that the determination rests in the sound discretion of the court, and that “in the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted.” The defendant carries the burden of proving special circumstances — substantial defense expenditures, pending counterclaims, statute-of-limitations gaming, or a documented pattern of harassment.

The Second Department pushed the rule further in American Tr. Ins. Co. v Roberson (2d Dept. 2014): the plaintiff “was not required to demonstrate any basis for seeking a voluntary discontinuance,” and there was no prejudice in permitting the plaintiff to commence a second action for the same relief in another venue. That case — which this office litigated — arose from a deliberate decision to discontinue a Nassau County declaratory judgment action and refile in Manhattan, where the controlling precedent was more favorable. Forum shopping by discontinuance and refiling, standing alone, is not a “special circumstance” that defeats the motion.

Conditions: Costs and Attorney’s Fees

The discretion in § 3217(b) cuts both ways: courts grant the discontinuance but attach a price. In Walden-Bailey Chiropractic v Erie Ins. Co. (App. Term 2d Dept. 2015), a Buffalo provider sued in Queens (after a prior Bronx filing), litigated for three years through motion practice, discovery, and repeated appearances, then moved to discontinue without prejudice. The court granted the motion — but conditioned it on payment of the defendant’s reasonable attorney’s fees “from commencement to date of discontinuance,” to eliminate the prejudice attributable to the withdrawal. Two practice points come out of Walden-Bailey: (1) the longer and harder the defendant has litigated, the more likely a fee condition becomes; and (2) the fee award is temporally capped — defense fees incurred litigating the discontinuance motion itself or post-discontinuance matters are not recoverable.

The Preclusion Trap: “With Prejudice” Stipulations

The phrase counsel scribbles on a stipulation has outcome-determinative consequences. As the Appellate Term held in Support Billing & Mgt. Co. v State Farm Mut. Ins. Co. (App. Term 2d Dept. 2008), “a stipulation of discontinuance which specifies that it is ‘with prejudice’ raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action.” If your client may ever need to reassert the claim — or any claim arising from the same transaction — the words “without prejudice” must appear, and you should think hard before signing anything that does not say them.

The refiling calculus has a second trap: CPLR § 205(a)‘s six-month savings clause does not apply to voluntary discontinuances. A discontinuance without prejudice preserves nothing if the limitations period has already run or runs before the new action is commenced.

Discontinuance as a Tactical Shield

Discontinuance is not only an exit; it is sometimes urgent risk management. In assigned no-fault litigation, an adverse coverage finding against the assignee-provider can collaterally estop the assignor’s bodily injury or UM claim. As discussed in our early case note on coverage findings in assigned actions, the moment a coverage issue surfaces that could damage the assignor, the prudent move is to execute a stipulation of discontinuance — and if the defendant will not consent, to move under § 3217(b) before the issue is decided on the merits.

Practice Pointers

• For plaintiffs facing a pre-answer 3211 motion: Harris confirms you may serve a notice of discontinuance even after the motion is filed. Exercise the right formally — serve and file a notice of discontinuance complying with § 3217(a)(1). A letter to the judge announcing that the case “is discontinued” accomplishes nothing.
• For defendants who want to close the window: A pre-answer CPLR 3211 motion leaves the plaintiff’s as-of-right discontinuance intact. If locking the plaintiff into the action matters more than the motion, serve an answer (preserving 3211(a) defenses in it) — but weigh that against the defenses waived if not raised by motion.
• Move early. Early-stage discontinuance, before substantial discovery and motion practice, is rarely opposed and almost never conditioned. After years of active defense, expect a Walden-Bailey fee condition.
• Audit the limitations period before discontinuing. “Without prejudice” is cold comfort if the statute runs before you refile; § 205(a) will not save you.
• Watch the stipulation language. “With prejudice” presumptively means res judicata on the same cause of action. Negotiate the scope expressly if partial preservation is intended.
• Check counterclaims. Discontinuing the complaint does not make the defendant’s counterclaims disappear; a plaintiff cannot use § 3217 to escape claims arising from the same transaction.
• Document the absence of prejudice. On a § 3217(b) motion, build a record of the procedural posture — discovery not yet taken, no trial date, no counterclaims — because the defendant bears the burden on special circumstances, and only concrete prejudice defeats the motion.

Frequently Asked Questions

Does a CPLR 3211 motion to dismiss cut off the right to discontinue as of right under CPLR 3217(a)(1)?

No. In Harris v Ward Greenberg Heller & Reidy LLP (4th Dept. 2017), the court held that a CPLR 3211 motion is not a “responsive pleading” — only pleadings defined by CPLR 3011 (complaint, answer, reply, third-party complaint and answer) qualify. A plaintiff may serve a notice of discontinuance even after a pre-answer motion to dismiss is filed.

Can a court deny a CPLR 3217(b) motion for voluntary discontinuance?

Yes, but only on a showing of special circumstances — prejudice to a substantial right of the defendant or other improper consequences. Absent that showing, the motion should be granted, and the plaintiff is not required to give any reason for seeking discontinuance (American Tr. Ins. Co. v Roberson, 2d Dept. 2014).

Can the court make me pay the defendant’s attorney’s fees to discontinue?

Yes. Section 3217(b) authorizes discontinuance “upon terms and conditions, as the court deems proper.” Where the defendant has actively litigated for an extended period, courts condition discontinuance on payment of the defendant’s reasonable attorney’s fees from commencement through the date of discontinuance (Walden-Bailey Chiropractic v Erie Ins. Co., App. Term 2d Dept. 2015).

Is a discontinuance “with prejudice” the same as losing on the merits?

Functionally, often yes. A stipulation of discontinuance specifying “with prejudice” raises a presumption of res judicata in future litigation on the same cause of action (Support Billing & Mgt. Co. v State Farm, App. Term 2d Dept. 2008). And even a without-prejudice discontinuance only preserves refiling while the statute of limitations remains open — CPLR 205(a) does not extend it.

Counsel-to-Counsel: Referrals and Co-Counsel

If you are litigating a CPLR § 3217 issue — a contested discontinuance motion, a fee-condition fight, or a res judicata battle over an old stipulation — and want a second set of eyes, or want to hand the motion or appeal to someone who briefs these issues every week, the Law Office of Jason Tenenbaum, P.C. works with referring attorneys across New York: per-diem motion practice, appellate briefing and argument (1,000+ appeals), and co-counsel arrangements on no-fault, personal injury, and insurance coverage litigation. Referring counsel stay involved to the degree they want. Call (516) 750-0595 or use the contact form — attorney inquiries answered same day.

Related Reading

• Voluntary Discontinuance Under CPLR 3217: When New York Courts Allow Strategic Withdrawal
• Discontinuance (CPLR 3217): fee conditions after three years of litigation
• Discontinuance without prejudice: refiling in a friendlier venue
• Stipulations of discontinuance with prejudice and res judicata
• Why coverage issues in assigned no-fault cases should trigger an immediate discontinuance
• Legal Encyclopedia
• No-Fault Defense practice page