Relates to voluntary discontinuances when responsive pleadings are not required

BILL NUMBER:S2535

Title of bill

An act to amend the civil practice law and rules, in relation to voluntary discontinuances

This is one of a series of measures being introduced at the request of the Chief Administrative Judge on the recommendation of his Advisory Committee on Civil Practice.

This measure would amend CPLR 3217(a)(1) to extend the time period in which a voluntary discontinuance of a civil action may be obtained without need for a court order or stipulation of settlement. As so amended, the statute would give maximum flexibility to parties who may want to settle claims very early in the litigation process, or even before a lawsuit actually is begun.

Under present law, a party who alleges a cause of action in a complaint, counterclaim, cross-claim or petition may unilaterally discontinue it without court order or stipulation only by giving notice thereof "at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier" (emphasis added). This provides the claimant with a maximum period of twenty days, which amounts to a very short window of opportunity within which to discontinue one's claim without need for court intervention or permission of one's adversary. Indeed, our Advisory Committee believes that it is too short and that it unnecessarily hamstrings a claimant's choices early in litigation. Accordingly, our Committee recommends this measure, which would give the claimant the period between service upon adversaries of the papers commencing his or her lawsuit and service of a responsive pleading within which to unilaterally discontinue a claim. This change will eliminate the arbitrary twenty day cut-off without prejudice to any other parties' rights.(1)

This measure will harmonize the CPLR with the Federal Rules of Civil Procedure, which permit a party to discontinue a claim any time before an answer thereto is due. See Federal Rules of Civil Procedure 41(a). Moreover, it will restore in New York the same measure of flexibility enjoyed by practitioners in New York under the former Rules of Civil Procedure.

This measure, which would have no fiscal impact upon the State, would take effect on the first of January next succeeding the date on which it shall have become a law.

Prior legislative history

None.

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become a law.

Footnote

(1) Recognizing that there are circumstances where no responsive pleading may be required (i.e. under CPLR 3011, no responsive pleading is required where a cross-claim is made but it is unaccompanied by any demand for an answer), this measure preserves a twenty day rule to prevent the situation where claimant's opportunity to unilaterally discontinue would be without any time limitation whatsoever.