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Initiating an HP despite court proceedings

NYC Housing Court Practice/Procedures

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Initiating an HP despite court proceedings

Postby cyberfyber » Mon Aug 28, 2006 10:53 am

My friend was planning on initiating an HP for open violations which've been in place for almost a year now.

Thing is, we got sidetracked by Holdover Proceedings initiated by the Landlord. We'd mentioned this to a number of attorneys we'd met with and yet never got a straight answer.
That is, whether we should continue on with the HP anyway right now, or wait until after we (most likely) win the case.

Would going ahead with the HP at this point be Detrimental? Helpful? or make not a bit of difference when it comes to fighting the case.

Mind you, I'm accompanying my friend this week to see more atty's and volunteers and such but when you get into the thick of questions and talk and all with these people, it's easy to overlook an item or two. I thought to ask here anyway so's to get yet more input. Thx.
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Postby Anna » Mon Aug 28, 2006 6:15 pm

T can request inspection within the current lawsuit; court uses same form as HP Action & T saves the fee [$45?]. Form available on HC on nycourts.gov ; bring to court filled in and have it in your hand. If case is discontinued or dismissed, file the HP same day.
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Postby cyberfyber » Mon Aug 28, 2006 6:48 pm

Thanks as always Anna.

Would you be so kind as to define 'discontinued' ?

'and yup, it's $45 (last I checked) and we've all the papers already filled out.
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Postby Aubergine » Mon Aug 28, 2006 10:32 pm

See CPLR 3217
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 within twenty days after service of the pleading asserting the claim, whichever is earlier, 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.
The Practice Commentaries in McKinney's by Prof. David Siegel discuss various aspects of voluntary discontinuance in detail:
For any number of reasons a plaintiff or any party who has asserted a claim may want to withdraw it. When he withdraws it voluntarily, New York practice calls the withdrawal a "discontinuance". The Federal Rules of Civil Procedure call it a "voluntary dismissal", see FRCP Rule 41(a). (In New York the word "dismissal" almost always implies a disposition made against the will of the one who interposed the claim.)

The discontinuance was at one time available to the plaintiff too freely, which led to abuse. The rule was afterwards tightened up to limit the discontinuance made by mere notice. Under CPLR 3217 the notice procedure is available to the pleader only at the very early stages of the litigation. Later in the case a discontinuance requires a stipulation or order. Ensuing Commentaries parse these provisions.

Although the word "action" is used in the rule, it applies as well to a special proceeding, CPLR 105, although the speed with which special proceedings are brought on (see CPLR 403) may make it difficult to apply the technical requirements of CPLR 3217(a)(1) when the method of discontinuance involved is that of a mere notice. See C3217:4.

As the statute indicates and as the Commentaries below elaborate, there are three methods for discontinuing an action: notice, stipulation, and court order. Other means should not be tried. It was held in Rotwein v. Sunharbor Manor Residential Health Care Facility, 181 Misc.2d 847, 695 N.Y.S.2d 477 (Sup.Ct., Nassau County, 1999), for example, that trying to effect the equivalent of a discontinuance with an amendment of the complaint won't work.



C3217:2. Use By Any Party Asserting Claim.

The procedures of CPLR 3217 are available to any party "asserting" a claim. They may therefore be resorted to not only by the plaintiff, but by a defendant who has interposed a counterclaim, cross-claim, or third-party claim, by a third-party defendant who has counterclaimed against the third-party plaintiff or main plaintiff or cross-claimed against a co-defendant of the third-party plaintiff, etc. See CPLR 1008.

When examples are used in these Commentaries, they will treat of the most usual situation in which the plaintiff (P) is seeking to discontinue the cause of action against the defendant (D). The example may then be applied to any parties to any cause of action asserted in the case.

The right to discontinue by mere notice has as one of its terminals the service of a "responsive pleading". Its service by D terminates P's right to discontinue by mere notice. No provision is made for claims requiring no responsive pleading because ordinarily there are no such claims under the CPLR. Every cause of action, whether asserted by way of complaint, counterclaim, cross-claim, third-party claim, or any other way, requires a responsive pleading, or so CPLR 3011 provided when CPLR 3217 arrived with the original CPLR. Afterwards, CPLR 3011 was amended to provide that in the case of a cross-claim, an answer to it is required only when the pleading containing the cross-claim demands one. If the demand is not made in that situation, the time for the discontinuance of a cross-claim by mere notice would be the 20-day period following the service of the pleading containing the cross-claim.


C3217:3. Treatment of Discontinuance for Limitations Purposes.

The practitioner must note at the very outset that a voluntary discontinuance is singled out for rough treatment under the statute of limitations. If the discontinuance does not operate as an adjudication on the merits, a matter discussed in Commentary C3217:15 below, and the original statute of limitations applicable to the claim is still alive--thus enabling P to bring a new action on the same claim without fearing the bar of the statute--P may be safe in discontinuing. But a discontinuance at a time when the original statute has expired will mean that any future action on the same claim will be met by the defense of the statute of limitations. A voluntary discontinuance is one of the non-merits dispositions that do not get a six-month extension in which to sue anew. See CPLR 205(a).

Another admonition is that the question of whether a discontinuance is on the merits--i.e., generates the defense of res judicata--may depend on the method of discontinuance and on whether there was also a prior discontinuance. It is easy for the practitioner to assume that these same factors also apply to the statute of limitations, but they don't. Any discontinuance, whether it comes about by notice, stipulation, or order, and whether there was a prior discontinuance or not, will invoke the exception contained in CPLR 205(a) and will therefore not get that statute's six-month extension for a new action.


Subdivision (a)

C3217:4. Discontinuance by Mere Notice.

The easiest way for a plaintiff to discontinue an action is by serving and filing a mere notice of discontinuance. This requires no stipulation from the other side and no permission from the court. But this method is available for only a brief period of time at the outset of the action, after which the would-be discontinuer must turn to the stipulation or order.

P may discontinue her claim by mere notice at any time before D serves an answer, or within 20 days after P served the complaint, "whichever is earlier". The 20-day period applies even if the time for D to answer in the particular case is 30 days. See CPLR 3012(c). Thus, either the service of an answer or the expiration of the 20-day period will cut off the plaintiff's right to discontinue by notice. Take this example:

P effects service of summons and complaint on D outside the state on July 1. D has 30 days, or until July 31, in which to answer under CPLR 3012(c). If D has not answered before July 21, that day would be the last on which P may discontinue by mere notice. But if D should serve the answer on any day before July 21, P may not thereafter discontinue by notice. The faster D answers, the faster P's right to discontinue by notice terminates. If D serves an answer on July 2, for example, P's only way to discontinue thereafter would be by stipulation or order.

The key time is the moment of service of the complaint. Until the complaint is served, the time provisions of CPLR 3217(a)(1) don't come into play. It would thus appear that the plaintiff may discontinue the action by mere notice prior to the service of his original complaint. This becomes significant in the supreme and county courts, in which CPLR 3012 applies and permits the action to be commenced with a summons accompanied by a brief CPLR 305(b) notice instead of a complaint, the complaint to follow later upon the defendant's demand. (This is not significant in the lower courts, i.e., the civil, district, city, town, and village courts, because there the complaint must always accompany the summons. See § 902 in each of the New York City Civil, Uniform District, Uniform City, and Uniform Justice court acts, McKinney's Vols. 29A, Parts 2 and 3.)

A plaintiff who has commenced the action with service of a summons without a complaint has sometimes been known to move for a discontinuance when all the while he could have discontinued by mere notice.

Starting an action without an initial complaint can have unique consequences-- dire or delightful, depending on which side you're on--in a matrimonial action. This involves the equitable distribution of the spouses' property. The right to equitable distribution continues until the "commencement" of the matrimonial action, and for this purpose the action is indeed commenced even with the filing of the summons alone, as long as it has indorsed on it a statement to the effect that this is an action for divorce, separation, etc. (See Siegel, New York Practice 3d Ed. § 76.) The complaint in that instance comes later, under a demand procedure.

The interesting point in respect of CPLR 3217(a)(1) is that until the complaint is served, the plaintiff's time to discontinue by mere notice remains open. If the plaintiff discontinues the action at any point within that extended time, the right to equitable distribution is deemed to have continued as if no action was commenced at all. This means that if either spouse comes into additional money or property in the interval between commencement and discontinuance, it becomes an additional ingredient in the equitable distribution pie.

A husband who participated in his wife's summons-only divorce action--without ever having demanded a complaint and hence without ever having served an answer--learned this the hard way in McMahon v. McMahon, 279 A.D.2d 346, 718 N.Y.S.2d 353 (1st Dep't, 2001). He came into $30 million additional dollars after commencement, but before any of the steps had been taken that would terminate his wife's right to discontinue by notice. So she forthwith discontinued by notice, popping the right of equitable distribution back into esse as if it had never terminated, and prepared to share the husband's bonanza. And succeeded. (The McMahon case is treated in more detail in the lead note in Siegel's Practice Review No. 105, stressing how a discontinuance in this context can become a weapon worth millions against unwary spouses.)

When the summons and complaint are served together, both time provisions of CPLR 3217(a)(1) are applicable, and either the expiration of 20 days after the service of the complaint, or the moment of the service of an answer, terminates the plaintiff's right to discontinue by notice.

Since CPLR 3217 would also apply in a special proceeding (see Commentary C3217:1), the plaintiff (who would be the "petitioner" in that case, see CPLR 401) must remember how fast the proceeding comes on. See CPLR 403. If it is brought on by notice of petition and petition served on July 1, and sets a return day of July 9, for example, the respondent is required to serve her answer no later than July 8. See CPLR 403(b). The service of that answer, whether on July 8 or before, would operate to cut off the petitioner's right to discontinue under CPLR 3217(a)(1).

The notice of discontinuance must be served on "all parties", and must be filed with the clerk with proof of service. That is so even if the discontinuance is being made in regard to only one adverse party. All parties are entitled to be kept abreast of the status of claims that have already been interposed against any party. As to how to discontinue against one of multiple adverse parties, see Commentary C3217:5 below.

Some actions can't be discontinued at all by the use of a mere notice. The class action, for example, can be discontinued only by court order. CPLR 908.

In certain instances involving claims of great prima facie merit, CPLR 3213 permits an action to be commenced with a motion for summary judgment instead of a complaint. The defendant in that situation is required to serve answering papers, as she would on a motion for summary judgment. If she has done so, may the plaintiff afterwards discontinue the action by mere notice? Irrigation & Indus. Development Corp. v. Indag S.A., 75 Misc.2d 66, 347 N.Y.S.2d 397 (1973), says no, holding that the service of answering papers on a CPLR 3213 motion is the same as the service of an answer in a plenary action, thus precluding the plaintiff from thereafter discontinuing by mere notice (and requiring him to secure either his adversary's stipulation or an order of court). The appellate division, although reversing on other grounds (forum non conveniens), 44 A.D.2d 543, 353 N.Y.S.2d 471 (1st Dep't 1974), upheld these conclusions and was affirmed in 37 N.Y.2d 522, 375 N.Y.S.2d 296 (1975).

Special Discontinuance Provision Governing Waste Site

A 1989 amendment added paragraph 3 to subdivision (a). It has so narrow a mission that it really belongs in some other law, perhaps the Real Property Tax Law or the Environmental Conservation Law, where it would not clutter the general mission that CPLR 3217(a) otherwise has in litigation. The amendment's design may be to enable a municipality or like governmental taxing unit to avoid being saddled with title to a hazardous waste site, which it would then have the burden of cleaning up.

Under Real Property Tax Law § 1122(2), the local tax enforcement official, in listing parcels delinquent in taxes for a certain period, can omit some parcels from the list. A coordinate 1989 amendment adds to the list of omittable parcels "inactive hazardous waste disposal sites".

The paragraph is apparently designed to permit a claim involving such a parcel to be discontinued any time before the case is submitted for decision or verdict. The plaintiff or petitioner can do this by filing a notice or "certificate". Hence the inclusion of the word "certificates" in subdivision (d) of CPLR 3217, discussed in Commentary C3217:16, below. It has reference only to this real property item.

The provision would seem to operate when the taxing authorities have brought a proceeding to secure or otherwise affect a parcel for tax delinquencies, only to learn while the action is pending that the land is a hazardous waste site and that taking title to it or control of it will be no picnic. The provision would seem to let the unfortunate tax folk opt out at any point before actual submission to the fact trier, and then see about arrangements to pass the picnic on to someone else.

The consent of other parties under paragraph 3 is apparently not required, as it is for a discontinuance under paragraph 2. In this respect it is like the mere notice that paragraph 1 allows for a discontinuance at the very early stages of the action.

Subdivision (d) of CPLR 3217, added in 2003 as part of a revenue-raising measure for the state, requires that all "notices, stipulations, or certificates" of discontinuance be filed. (If the discontinuance is based on the settlement of the case, the filing generates a $35 fee under CPLR 8020 [d]. See SPR 137:2-3.)

C3217:5. Discontinuance by Notice Against One of Several Adverse Parties.

Assume that P has brought an action against joint tortfeasors X, Y, and Z. All were served with summons and complaint on July 1 and their time to answer expires on July 21. X serves an answer on July 10. P wishes on July 13 to discontinue the action. He should be able to do so by mere notice as against Y and Z--neither of whom has yet answered--because the 20-day period is still open. But P may not discontinue by mere notice as against X because X has already served its answer. Since this is an instance of joint and several liability in which P is permitted to pick, from among the joint tortfeasors, those he wants to sue, P could have limited suit to X in the first place, omitting Y and Z. This suggests that as long as the time limitations of CPLR 3217(a)(1) are open as against any of several named defendants, P should be able to discontinue by notice as against them--Y and Z in the example--even though the device is no longer available against X.

Discontinuance against X, who has answered, would have to be sought by stipulation or order under 3217(a)(2) or (b).

If X is put out because a discontinuance by P against Y and Z deprives X of potential contributors to X's tort liability, X can simply implead Y and Z and get them right back into the action that way. Since contribution is a form of indemnity, moreover, X would meet no statute of limitations barrier in so doing. See Siegel, New York Practice 3d Ed. § 162.

C3217:6. Service of Notice to Discontinue.

All parties to the action must be served with a notice of discontinuance even if it seeks to discontinue only against one of them. Service of the notice on one who has appeared is easy enough. It may be served by the usual mail method addressed to that party's attorney. CPLR 2103(b). But serving notice on parties who have not yet appeared and whose appearance time has not yet expired may pose a problem.

CPLR 2103(e) requires that service on any party requires service of the same paper on every other party who has appeared. Does that statute apply to dispense with service of the notice of discontinuance on the non-appearers, or does CPLR 3217(a)(1) supersede it and require service on the non-appearers, too? If the latter, then the fact that they have not yet appeared would mean that the service on them would have to be made in the same manner as a summons. CPLR 2103(e); see Siegel, New York Practice 3d Ed. § 203. The discontinuing party should keep that in mind, since a defect in the method of service may be found to invalidate the notice as against that particular party, thereby causing the time in which to discontinue by mere notice to expire. That is especially so when the discontinuance is being sought against the yet-to-appear party himself.

The result of an omission here will usually lead to no greater consequence than that the plaintiff will have to seek the discontinuance by stipulation or order. While the order will usually be granted (see Commentary C3217:12), the risk it entails is that the court may impose substantial costs and even an attorney's fee on the plaintiff as a condition.

C3217:7. Amendment of Pleading as Affecting Discontinuance by Notice.

The period within which a plaintiff may discontinue an action is also one in which she may amend the complaint. See CPLR 3025(a). The question arises whether an amendment of the complaint can enable a plaintiff to discontinue by mere notice in an instance where he could otherwise not do so. The Advisory Committee addressed the question, but its intentions are not clear. See 1st Rep.Leg.Doc. (1957) No. 6(b), p. 104 (last sentence of first paragraph).

We should first assume that a plaintiff, P, intent on discontinuing against a sole defendant, D, by mere notice is unlikely to choose to amend the complaint. If P does so anyway, P probably has in mind to secure some advantage in this regard. If, for example, D was served outside the state, D has 30 days to answer. CPLR 3012(c). If on the 21st day D has not answered, P is nonetheless precluded from discontinuing because of the 20-day limitation in CPLR 3217(a)(1), but P is still able to amend the complaint under 3025(a) without court leave. P's strategy may be to amend the complaint on the 21st day, thereby (P assumes) securing a new 20-day period in which to discontinue by mere notice. This stratagem should not be allowed. The 20-day period of 3217(a)(1) should be deemed to run from the service of the original complaint. A plaintiff whose original 20-day period has expired should be required to seek a stipulation or order of discontinuance. The theory of the CPLR 3217(a)(1) time limitation is that once P has burdened D with a fully interposed claim, P should be permitted to discontinue ex parte only at the very incipient stages of the litigation. To permit P by any artifice to circumvent these time limitations would frustrate that intention. Activities of this kind are suspect anyway. If D has no objection to the discontinuance, why doesn't P just get a stipulation from D?

If the plaintiff attempts a discontinuance by notice against a defendant who claims it to be invalid because untimely, the defendant should be permitted to move the court for an order canceling or otherwise negating the notice. The court upon such an application can first decide whether P was within the time periods provided by CPLR 3217(a)(1). If P was, the court should permit the discontinuance to stand without inquiring into P's motives. The purpose of permitting P to discontinue by mere notice (when P does so timely) is to enable P to withdraw the case without explaining his motives to anyone. But if the notice was not timely, the court may indeed inquire into P's motives, treating D's motion to vacate or cancel the notice as the equivalent of a motion by P for an order of discontinuance. The court in that case can of course allow the discontinuance, but can impose conditions if they are called for. See Commentary C3217:13 below.

It should also be the rule that if D has already served an answer to the original complaint, P's later amendment of the complaint should not enable him to discontinue by notice.

C3217:8. Motion Against Pleading as Affecting Discontinuance.

Once D serves an answer to P's complaint, P's right to discontinue by notice is terminated. But D is permitted to move against the complaint, instead of answering, within the responding time. D may, for example, move to dismiss under CPLR 3211. See 3211(e).

It is not clear what impact a CPLR 3211 motion by D was intended to have on P's right to discontinue by notice, but a motion to dismiss the complaint under CPLR 3211 is in one sense a "response" to it. See and compare Rule 41(a) of the Federal Rules of Civil Procedure. If a CPLR 3211 motion is made against the complaint at a time when the 20-day period supplied by CPLR 3217(a)(1) still has a few days left over, P should not be permitted to discontinue by mere notice during those remaining days. D's motion to dismiss under CPLR 3211 may be able to put a more conclusive end to P's claim than a mere discontinuance would. Hence D should not have the CPLR 3211 motion abated by P's discontinuance. And if the theory of the CPLR 3217(a)(1) time limitations is that a defendant already inconvenienced by the suit should not be without some say in whether it is to be discontinued--and that is apparently the theory--then we must say that the defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint. This leads to the conclusion that a motion to dismiss under CPLR 3211 should be the equivalent of an answer under 3217(a)(1), terminating P's right to discontinue by notice.

The same thing may be said of a motion by D to correct the complaint under CPLR 3024, but since that motion, if successful, would have a mere corrective rather than dispositive effect on the complaint, the court would be justified in reaching different conclusions about it insofar as it affects a discontinuance.

C3217:9. Discontinuance by Stipulation.

A plaintiff whose time to discontinue by mere notice has expired must look to one of the other two methods for discontinuing. One of these is the stipulation under CPLR 3217(a)(2).

The stipulation of discontinuance must be signed by the attorneys "for all parties", which should include those against whom the discontinuance is sought as well as those against whom the suit is to be continued. A discontinuance against defendant X can have an adverse effect on defendant Y, for which reason Y's stipulation is also required. (Substantial rights of contribution among originally joined defendants may be involved.) If one of the parties refuses the stipulation, P's remedy is to turn to the third alternative, the court order.

The stipulation is not available as a discontinuance method if any party is an infant, incompetent, or conservatee. (A court order would have to be sought.) Suppose that the proceeding is brought for the very purpose of having a guardian appointed for that person. How may the proceeding be discontinued? In an extensive review of the subject, Application of Chachkers, 159 Misc.2d 912, 606 N.Y.S.2d 959 (Sup.Ct., N.Y.County, 1993), holds that a discontinuance may be allowed only by court order; that a mere stipulation by the parties will not do. The court discusses the relevant changes made in the law of guardianship by the (then) recently enacted Article 81 of the Mental Hygiene Law.

The stipulation is also precluded as a discontinuance device when a nonparty has an interest in the subject matter and would be adversely affected by the discontinuance. A known assignee of the claim would be an example of this. Here we have to note a few practical considerations.

If all the parties stipulate to discontinue, and the stipulation is filed with the clerk with no indication that any nonparty has an interest, the filing of the stipulation presumably discontinues the action and the case is terminated. (The third person may perhaps seek a vacatur of the stipulation on a showing of her unprotected interest. See Commentary C3217:10). It would be reasonable to require that the party (usually the plaintiff) who seeks to file a stipulation of discontinuance accompany it with an affidavit attesting that no nonparty's interest is involved. (The affidavit could also depose that no infant, incompetent, or conservatee is a party.)

Such an affidavit would supply at least some evidence that the requirements of CPLR 3217(a)(2) have been met. A stipulation among parties is not the best way to protect the rights of nonparties, which suggests that the court should be receptive to any application of an interested nonparty who seeks to vacate a stipulation that should not, because of the nonparty's interest, have been filed.

What rule in impleader cases? Suppose that the discontinuance is sought not by P of her claim against D, but by D of its third-party claim against T. Need the main plaintiff, P, also sign the stipulation? The court says no in Hoag v. Chase Pitkin Home and Garden Center, 252 A.D.2d 953, 675 N.Y.S.2d 724 (4th Dep't 1998). When the statute requires the attorneys for "all parties" to sign the stipulation, holds the court, it means all parties to the claim being discontinued. Here that's the third-party claim, to which P was not a party. (P's aim in opposing the discontinuance in Hoag was to keep T in the action to facilitate disclosure. If there is any basis for the liability of T directly to P, that might be accomplished in other ways. See the discussion of Hoag in SPR 83:2.)

C3217:10. Vacating Stipulation of Discontinuance.

The general rule had been, and perhaps still is, that a plenary action is required in order to vacate a stipulation of discontinuance. See Gardner v. Board of Education Central School Dist. No. 1 Towns of Saugerties, et al., 28 A.D.2d 616, 279 N.Y.S.2d 794 (3d Dep't 1967). The Gardner case has ample authority behind it, and perhaps its conclusion is fair enough when a party to the stipulation is the one who is seeking to vacate it. But if the application to vacate is made by a nonparty whose interests were adversely affected by the discontinuance--interests that should, under CPLR 3217(a)(2), have precluded the stipulation in the first place--the nonparty's application to vacate should be entertained by mere motion captioned in the presumably discontinued action. Lehrl v. Hudson Transit Lines, Inc., 76 Misc.2d 625, 351 N.Y.S.2d 528 (1974), so holds, dispensing with a separate plenary action.

Perhaps the prior caselaw requiring a plenary action to vacate a stipulation of discontinuance should be abandoned altogether. A plenary action is a heavy burden to bear in any instance and it is not called for when a mere motion, on notice to all parties, can do the job effectively and fairly. It is assumed that the movant will have good evidence to sustain the motion and overturn the stipulation, and in justification of a motion procedure one need only analogize to the situation in which vacatur is sought of a final judgment on the ground of newly discovered evidence, relief that can be secured by mere motion. See CPLR 5015(a)(2). If a simple motion is permissible there, it should be permissible here.

The theory that the discontinuance divests the court of all jurisdiction in the case gives too much due to the technical darker ages of our procedural development. The court should have as much jurisdiction to entertain a motion to vacate a stipulation of discontinuance as it has to open a default, a procedure that also involves a mere motion (under CPLR 317 or 5015). In that instance there was initially jurisdiction of the parties involved, and it enables the court to open a default with a motion. By analogy, it should also enable the court to vacate a discontinuance with a mere motion.

While the courts are seen adhering to the requirement of a separate action from time to time, e.g., Devon Service, Inc. v. Ashreh Supply Corp., 68 Misc.2d 15, 324 N.Y.S.2d 802 (1971), there does appear to be some judicial disenchantment with the rule and a periodic departure from it. In Phoenix Assurance Co. v. Stark Mobile Homes, Inc., 39 A.D.2d 514, 330 N.Y.S.2d 548 (1st Dep't 1972), for example, the court found the limitation to inhere only in the kind of contract of settlement that existed in Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435, 160 N.E. 778 (1928). The court in Phoenix found that the case before it was not such a case, and therefore allowed a mere motion to vacate.

The Yonkers case does appear to be the villain in this piece, the strait-jacket in which the court in the Devon case, for example, found itself. Yonkers and its insistence on a plenary action to vacate a discontinuance is needlessly technical. The Court of Appeals would do well to reconsider it when next the opportunity arises.

If there appears to be any difficulty about whom to serve with the motion papers, as where it is not clear whether some other party's attorney is still his attorney, the matter can be resolved by bringing the application on with an order to show cause in which the court can fix the whom and the how of the motion papers' service.

C3217:11. Time for Stipulation.

A stipulation of discontinuance signed by all parties may be filed at any time after the action is begun and before the case is submitted to the trier of the facts. The rule specifies "court or jury" as the fact-trier but it should apply as well to a case tried to a referee to determine (see CPLR 4317). (A referee "to report", who merely renders a report to the court instead of deciding the case, falls into a different category. In that instance the submission of the referee's report to the court would probably be the terminal point beyond which a stipulation of discontinuance is precluded.)

After the case goes to the fact-trier, a stipulation alone can't discontinue the case. Discontinuance at that point requires both a stipulation and a court order or, as sometimes phrased, an order "on the stipulation".



Subdivision (b)

C3217:12. Discontinuance by Court Order.

The plaintiff whose time to discontinue by mere notice under subdivision (a)(1) has expired and who can't secure the all-party stipulation permitted by subdivision (a)(2) must turn to the only remaining alternative: a court order of discontinuance.

D will not ordinarily refuse P's request for a stipulation of discontinuance unless D believes that P has something up the sleeve. (In matrimonial actions, because of the equitable distribution factor, the sleeves can be loaded. See the discussion of the McMahon case in Commentary C3217:4 above.)

Any party may of course insist on conditioning the stipulation in order to protect her own rights. If D refuses the stipulation, the probability is that P is seeking to gain some undue advantage from the discontinuance. Any such undue advantage that the court detects--and since the motion to discontinue must be on notice we may assume that adverse parties will bring all of these things to the court's attention--may be given full consideration by the court in determining whether to grant the motion.

The court has broad discretion here. It has been said that a plaintiff should be permitted to discontinue the action at any time "unless substantial rights have accrued or his adversary's rights would be prejudiced thereby." Louis R. Shapiro, Inc. v. Milspemes Corp., 20 A.D.2d 857, 248 N.Y.S.2d. 85 (1st Dep't 1964). The court's inquiry on a motion to discontinue must therefore be directed to the prejudice that may accrue to others in, or even outside of, the litigation. The court should also consider the stage that the litigation has reached. The further it has gone the more suspect is the plaintiff's endeavor to discontinue.

At the trial, for example, an experienced trial lawyer gets a certain feeling about the way the evidence is "going in". He may feel that things have not gone his way this time around but that if allowed to try again he can remedy this. He may not like a particular juror's reaction, for example. The contingencies are innumerable, and any one of them can motivate the plaintiff's effort "to make another try, although he has really had his fair day in court." The motion in such an instance should be denied. See Getz v. Harry Silverstein, Inc., 205 Misc. 431, 128 N.Y.S.2d 436 (1954).

The benefit of a court application to those who would be adversely (and unfairly) affected by a discontinuance is that it enables the court to consider all factors in making its determination.

An unusual example of a discontinuance allowed by court order is Schimansky v. Moduline Industries, 79 Misc.2d 888, 361 N.Y.S.2d 610 (1974), aff'd 50 A.D.2d 634, 374 N.Y.S.2d 771 (3d Dep't 1975). Wrongful death actions were brought in Columbia County, New York, where the accident occurred, by a Rhode Islander against New Hampshire residents. The case was pretried and was ready. Now plaintiff moved to discontinue so as to be able to sue anew in the United States District Court in the Southern District of New York--of which Columbia County was then part--because he thought he could get a higher verdict there. The court allowed the discontinuance, holding it to be the plaintiff's right.

In affirming, the appellate division said that the sole question before it was whether the trial court had abused its discretion in granting the discontinuance on the plaintiff's simple hope for a higher verdict in a federal court, and held that the discretion was not abused. Prejudice to the defendants was avoided, the court observed, by the trial court's conditioning the discontinuance on the plaintiff's paying the defendants not only the usual costs and disbursements of the action to date, but their "expenses" as well. That presumably means such actual expenses as the defendants can substantiate-- including attorneys' fees--regardless of whether they would fall under the ordinary disbursement categories applicable in New York litigation.

The order of discontinuance may be sought at any time after commencement of the action and before submission to the fact-trier. Once the case is submitted, a discontinuance can take place only upon a stipulation to which the court agrees, i.e., it requires both a stipulation and court order.

As witness the Schimansky disposition, above, the order may be a conditional one. See Commentary C3217:13 below.

C3217:13. Conditional Order.

The order on a motion to discontinue may be made "upon terms and conditions, as the court deems proper". The court can impose costs on the plaintiff and even exact from the plaintiff a sum to compensate the defendant for his attorney's fees. The Advisory Committee's initial report on the precursor of CPLR 3217 contains other illustrations of conditions, such as that no later action may be brought on the same cause (a direction that in effect makes the discontinuance a final disposition on the merits and entitles it to res judicata treatment), or that a party to the action may use all or part of the record accumulated in it as evidence in another action. See 1st Rep.Leg.Doc. (1957) No. 6(b), p. 104.

If an order granting a motion to discontinue states that it is made on the condition that the cause will not be sued on again, a judge in any subsequent action, whether within or without the state, should accord it full res judicata effect. The condition may be phrased in several ways. Its specification in such terms as "on the merits" or "with prejudice" should in this instance ordinarily be construed to preclude future suit on the claim, under the res judicata doctrine.

It has been held, however, that "[t]he power to impose reasonable terms as a condition for allowing a discontinuance did not include power summarily to direct a dismissal of the action on account of failure to comply with the terms imposed." Rosenberg v. 3130 Grand Concourse, Inc., 23 A.D.2d 555, 256 N.Y.S.2d 632 (1st Dep't 1965). In that instance the trial judge permitted a discontinuance with costs to the defendant, but added that if the costs were not paid within 10 days the case would be "dismissed with prejudice". The appellate division held such direction improper, noting that the defendant can seek satisfaction of a costs judgment through the usual means whereby the enforcement of any money judgment is sought. See CPLR Article 52.

Since a silent discontinuance will not ordinarily be on the merits, see Commentary C3217:15, and will thus enable the plaintiff to sue anew (if the original statute of limitations is still alive), the "crime" of nonpayment of costs did not call for the "punishment" of what in Rosenberg would have amounted to a permanent forfeiture of the cause of action. The "condition" imposed in that case was therefore found unreasonable and was overturned.

Had the "dismissal" in Rosenberg been without prejudice, a paradox might have ensued. A "dismissal without prejudice" can secure the dismissed plaintiff a six-month statute of limitations extension under CPLR 205(a), while a voluntary discontinuance cannot. This would be an unusual instance in which the plaintiff would be better off getting "dismissed" involuntarily than discontinuing voluntarily.

C3217:14. Conditions Affecting Counterclaims and Other Claims.

It is sometimes difficult to gauge the effect of a discontinuance of the main claim on any counterclaims, cross-claims, third-party claims, etc., that may have been interposed.

A discontinuance by mere notice under CPLR 3217(a)(1) should rarely present this kind of problem because it takes place before a responsive pleading is served. There are therefore no other claims in the picture.

A discontinuance by stipulation would presumably stipulate as well to what is to happen to any other claim present in the action, which enables the party interposing the other claim--who must sign the all-party stipulation of discontinuance under CPLR 3217(a)(2)--to insist on conditions to protect herself. (She can agree to sign the stipulation, for example, only if it preserves all of her rights in connection with the claim she interposed.)

If the court order is the method of discontinuance, of course the order can, by the imposition of conditions, take any needful step to preserve rights connected with other claims. A counterclaim can be ordered severed and preserved for trial in the instant suit notwithstanding the grant of leave to discontinue the main claim. Or it can be allowed to be the subject of a separate suit, and by the imposition of conditions the court can require the discontinuing party to submit to jurisdiction in a specified court (in which separate suit on the counterclaim or cross-claim, etc., is to be brought, within or without the state), or to waive the statute of limitations in such court, and so forth. In regard to the statute of limitations applicable to a claim that was a counterclaim in a previously discontinued suit, see CPLR 203(e).


Subdivision (c)

C3217:15. Effect of Discontinuance.

A discontinuance by any method is ordinarily without prejudice to the commencement of a new action, although the plaintiff must be concerned about the statute of limitations (a subject separately discussed in Commentary C3217:3 above).

But if an action on the same cause in any court, state or federal, has previously been discontinued by any method at all, a discontinuance by notice in the second suit will automatically operate as a final judgment on the merits against the discontinuer. It is only when the second suit is discontinued by notice that this result occurs; a discontinuance by stipulation or order will not be an automatic adjudication on the merits.

The stipulation or order of discontinuance may of course specify that it is to be on the merits, or "with prejudice" (or any other equivalent terminology). It will then have res judicata effect in future litigation on the same cause.

The phrase "same cause of action" is not defined in CPLR 3217(c), but it should not be given a restrictive interpretation. An artful plaintiff can readily change the theory of recovery in a later suit although it is in essence for the "same cause of action". The criteria applied under CPLR 3211(a)(4), when a later suit is sought to be dismissed based on the pendency of an earlier one on the "same cause of action", may profitably be consulted for application to the same language in CPLR 3217(c). See Commentary C3211:15 on CPLR 3211. The two have in common the purpose of sparing the defendant harassment through repetitive suits.

In order for a discontinuance by notice in a second action to operate as res judicata because of a discontinuance of an earlier suit, it is not necessary that the "discontinuance" in the earlier suit have carried precisely that label. If the activity, whatever its name, in the earlier action amounted to what CPLR 3217 would deem a discontinuance (by any method), it should qualify. This is a matter of some moment, because CPLR 3217(c) appends its "on the merits" treatment to a discontinuance in action #2 even when the discontinuance in action #1 was in a federal or sister-state court. What New York in CPLR 3217 calls a voluntary "discontinuance", for example, is called a voluntary "dismissal" in the federal rules. See Rule 41(a) of the Federal Rules of Civil Procedure.

The automatic "on the merits" label that appends to a discontinuance by notice in the second action when a previous discontinuance has been had by any method is another step designed to protect the defendant from harassment. When it is clear that the plaintiff has no harassment in mind in discontinuing the second action by notice, but a legitimate purpose, the "on the merits" label will be held not to attach. In Headley v. Noto, 45 Misc.2d 284, 256 N.Y.S.2d 750, aff'd 24 A.D.2d 493, 261 N.Y.S.2d 846 (2d Dep't 1965), for example, P discontinued the second action by notice (after a prior discontinuance in the first action) because D had moved to dismiss the second action for lack of jurisdiction. The discontinuance was therefore only a concession of the lack-of-jurisdiction claim being made by D. D's motion to dismiss the third action that the plaintiff now commenced, on the contention that the second discontinuance was "on the merits", was therefore denied. (It could also have been argued that P, if he had served a complaint in the second action, should not have been permitted to discontinue it by mere notice after the defendant had made a motion to dismiss under CPLR 3211. See Commentary C3217:8 above.)


Subdivision (d)

C3217:16. Requirement That Discontinuances Be Filed.

Subdivision (d) requires that all notices, stipulations and certificates of discontinuance be filed with the county clerk. This is strictly and exclusively a revenue measure. The amendment that added the subdivision was in the state budget. Its purpose was to collect a $35 fee for every discontinuance filed and to assure the fee by mandating the filing.

The requirement is straightforward enough. It's specification of "notices" and "stipulations" have clear antecedents in CPLR 3217(a). (The filing mandate does not explicitly include a court order, although a court order is almost always entered and filed, of course, at least when court enforcement of it may be needed.)

The addition of subdivision (d) is really the handmaiden of the second sentence added by the 2003 budget to CPLR 2104. That sentence reads

With respect to stipulations of settlement and notwithstanding the form of the stipulation, the terms of such stipulation shall be filed by the defendant with the county clerk.

Between the 2003 amendments of CPLR 2104 and 3217, there is an unequivocal legislative intent to assure a filing, whether of a settlement without a stipulation (however that may come about) or a stipulation. See CPLR 8020(d), another part of the same 2003 financial package. There is really no difficulty about all this, except for the word "terms" in CPLR 2104. A stipulation of discontinuance based on something other than a settlement would not meet the CPLR 2104 requirement that the "terms" of the stipulation be included. But when the stipulation that calls for the discontinuance is indeed the product of a settlement--as many if not most intra-action discontinuances are--the requirement that the "terms" of the settlement be included has generated controversy.

For the purpose of avoiding revelation of the "terms" of the settlement when confidentiality was part of the motivation for it, many lawyers have apparently ignored the CPLR 2104 requirement that the settlement be filed. They just don't file, relying on the mutual agreement of the parties not to raise any issue about it and apparently unconcerned that the court will raise the issue. (The court is not even likely to be aware of it.) This of course means that resolved cases will remain on the court's calendars notwithstanding that they have been disposed of, a result of course unsatisfactory to those who administer the court system.

Some lawyers have indicated that they will just make a motion for a court order of settlement--if all sides agree to it--because they perceive a loophole in CPLR 3217(d) that requires notices and stipulations of discontinuance to be filed but says nothing about court orders of discontinuance, even those based on a settlement. Court orders, they therefore assume, need not include the "terms" of the settlement that CPLR 2104 otherwise requires.

These and related issues--and ploys?--to circumvent the "terms" requirement remain to be resolved. Developments on the subject are tracked in Siegel's Practice Review, in which the lead notes in Issues 139 and 140 treat the "terms" provision of CPLR 2104.
Aubergine
 

Postby cyberfyber » Mon Aug 28, 2006 10:49 pm

By God! Methinks I can now claim blindness by reason of confusion!

Oh No! Thanks Aubergine but methinks I can spend a month reading this and still end up blind.

Soooooo, does this all end up in meaning the plaintiff finding a way out of his/her own complaints?..and if so, then can I strike it down if I feel lucky?....or am I way off on all of this?

Heck, does anybody even understand any of this?..or am I stuck with pursuing this all to the plaintiffs whim?...which le'ts face it, sucks!!!!
Sounds like a fixed deal to me!

BTW Aubergine, I ddin't mean to sound like a smart guy. Thank You! all the same!!!! Okay doll!???
cyberfyber
 
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Postby Anna » Mon Aug 28, 2006 11:14 pm

discontinuance with prejudice: to voluntarily put an end to a claim or proceeding, which prevents renewal of the same claim or cause of action

discontinuance without prejudice: to voluntarily put an end to a claim or proceeding, which does not prevent renewal of the same claim or cause of action

http://nycourts.gov/courts/nyc/housing/ ... ions.shtml

think: 'no-fault' dismissal or dismissal by petitioner instead of by judge.
Anna
 
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