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This entry was published on 2023-01-06
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Voluntary discontinuance
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 32
Rule 3217. Voluntary discontinuance. (a) Without an order. Any party
asserting a claim may discontinue it without an order

1. by serving upon all parties to the action a notice of
discontinuance at any time before a responsive pleading is served or, if
no responsive pleading is required, within twenty days after service of
the pleading asserting the claim and filing the notice with proof of
service with the clerk of the court; or

2. by filing with the clerk of the court before the case has been
submitted to the court or jury a stipulation in writing signed by the
attorneys of record for all parties, provided that no party is an
infant, incompetent person for whom a committee has been appointed or
conservatee and no person not a party has an interest in the subject
matter of the action; or

3. by filing with the clerk of the court before the case has been
submitted to the court or jury a certificate or notice of discontinuance
stating that any parcel of land which is the subject matter of the
action is to be excluded pursuant to title three of article eleven of
the real property tax law.

(b) By order of court. Except as provided in subdivision (a), an
action shall not be discontinued by a party asserting a claim except
upon order of the court and upon terms and conditions, as the court
deems proper. After the cause has been submitted to the court or jury
to determine the facts the court may not order an action discontinued
except upon the stipulation of all parties appearing in the action.

(c) Effect of discontinuance. Unless otherwise stated in the notice,
stipulation or order of discontinuance, the discontinuance is without
prejudice, except that a discontinuance by means of notice operates as
an adjudication on the merits if the party has once before discontinued
by any method an action based on or including the same cause of action
in a court of any state or the United States.

(d) All notices, stipulations, or certificates pursuant to this rule
shall be filed with the county clerk by the defendant.

(e) Effect of discontinuance upon certain instruments. In any action
on an instrument described under subdivision four of section two hundred
thirteen of this chapter, the voluntary discontinuance of such action,
whether on motion, order, stipulation or by notice, shall not, in form
or effect, waive, postpone, cancel, toll, extend, revive or reset the
limitations period to commence an action and to interpose a claim,
unless expressly prescribed by statute.