Court Vacates Late-Filed Notice of Discontinuance

On January 24, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Street Line, Inc. v. Capital Logistics & Warehousing Group, Inc. , 2020 NY Slip Op. 30330(U), vacating a late-filed notice of discontinuance, explaining:

A notice of discontinuance must be timely filed pursuant to CPLR § 3217 (a) (1), which provides that:

(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

Thus, the Plaintiff should have filed its Notice of Discontinuance before the Defendant filed its pre-answer motion to dismiss. The record indicates that the Plaintiff's Notice of Discontinuance was untimely filed on July 22, 2019, nearly four months after the Defendant filed its motion to dismiss on March 4, 2019. As a result, the Notice of Discontinuance may be vacated for failure to adhere to the deadlines set forth in CPLR § 3217(a)(1).

(Internal citations omitted).

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are special procedural requirements, such as the time limits for discontinuing an action without the consent of the court or the opposing party. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.