(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.
R 3217.Voluntary discontinuance.
Article 32. Accelerated Judgment · Last amended 2022 · Last verified July 21, 2026
In one sentenceCPLR 3217 spells out how a party can drop a claim, without a court order early in the case, by stipulation later, or by court order at any point, and what that discontinuance does to the underlying claim.
Full Text of CPLR 3217
(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.
Plain-English Summary
CPLR 3217 lays out how a party can walk away from its own claim. Early in the case, before a responsive pleading is served, a notice of discontinuance filed with the clerk ends the claim without needing a court order. Later on, once every attorney of record signs a stipulation, the parties can discontinue by agreement at any point before the case reaches the jury or the court for decision.
Outside those two paths, only the court can authorize a discontinuance, on whatever terms it sets. And once a case has been submitted to the court or jury for a decision, even a stipulation isn't enough unless every party who has appeared joins in.
A discontinuance is ordinarily without prejudice, leaving the door open to refile. But there's a catch: discontinue the same claim by notice a second time, and that second discontinuance counts as a decision on the merits, closing the door for good. For actions on certain financial instruments covered by CPLR 213(4), discontinuing the case also doesn't reset the limitations clock; the time already run against the claim keeps counting.
Frequently Asked Questions
Can a plaintiff drop a lawsuit in New York without a judge's permission?
Yes, within limits. A notice of discontinuance works before the defendant answers, or a stipulation signed by every attorney of record works any time before the case reaches the jury or the court for decision.
What is the two-dismissal rule under CPLR 3217?
If a party discontinues the same claim by notice a second time, the second discontinuance counts as a decision on the merits, barring the claim from being brought again.
Is a voluntary discontinuance with or without prejudice?
Without prejudice by default, unless the notice, stipulation, or order says otherwise, or the two-dismissal rule applies.
Can a case be discontinued after it goes to trial?
Only if every party who has appeared in the case agrees to the stipulation; once the case has been submitted to the court or jury, a party cannot discontinue it alone.
Does discontinuing a case reset the statute of limitations in New York?
Not for certain instruments covered by CPLR 213(4); discontinuing an action on those claims doesn't extend, revive, or restart the limitations period unless another statute says so.
Advisory Committee Notes
The Committee recommends that CPLR 3217(a)(1) be amended to extend the time period in which a voluntary discontinuance may be obtained without the need for a court order or a stipulation of settlement. This change would give maximum flexibility to parties who may want to settle claims very early in the litigation process. Currently, paragraph (1) of subdivision (a) of CPLR 3217 provides the standards for obtaining a voluntary discontinuance without a court order at the outset of a case. Paragraphs (2) and (3) set forth the rules for discontinuing a case after disclosure has been completed, but before the case has been submitted to the jury.
The need for flexibility becomes particularly acute in the early stage of a case. At present, a party alleging a cause of action in a complaint, counterclaim, cross-claim, or petition may only unilaterally discontinue it without court order or stipulation by serving and filing the requisite notice on all parties “at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier . . . ” CPLR 3217(a)(1). The proponent of the claim has a very limited period of time to exercise his or her unlimited right to discontinue the cause of action. The 20-day limitation applies even: (1) if the responsive pleading has not yet been served; and (2) if the time to respond is 30 days. See CPLR 3012(c). In addition, the service of an amended pleading pursuant to CPLR 3012(c) will not preclude the application of the 20-day period. See Fox v. Fox, 85 A.D.2d 653 (2d Dept. 1981). Effectively, no party may unilaterally discontinue an action by notice beyond 20 days after service of the pleading asserting the claim.
The Committee recommends that CPLR 3217(a)(1) be amended to permit a voluntary discontinuance without court order or stipulation before the responsive pleading is served or within 20 days after service of the pleading of the claim, whichever is later. This modification will also bring the CPLR into line with the Federal Rules of Civil Procedure, which permit a party to discontinue any time before an answer is due. See Federal Rules of Civil Procedure 41(a). Apparently, when the Civil Practice Act in New York was modified by the enactment in 1962 of the CPLR the flexibility of the prior practice was eliminated. That flexibility should be reinstated.
It is necessary to retain the provision of the rule which permits a voluntary discontinuance without court order or stipulation “. . . within 20 days after service of a pleading asserting a claim” to address the scenario reflected in CPLR 3011 by which a cross-claim may be asserted, the defendant/proponent does not demand a reply and no responsive pleading is required. Without the 20 day language, there would be no provision for the voluntary discontinuance of a crossclaim.
This rule is taken directly from RCP 301. No change of substance has been made, although it has been condensed and rephrased. Rule 301 was adopted in 1953 upon recommendation of the Judicial Council and represented an eminently sound approach to the problem of voluntary discontinuance. The reasons for the formulation adopted, as well as the prior New York law and a sketch of the law of other jurisdictions, are clearly set forth in the Judicial Council’s supporting study. See 19 NY Jud Council Rep 197–217 (1953). It should be noted that there is a right to amend without leave during the period specified in subd (a)1 of this rule. See CPLR § 3025(a). However, such amendment could not include a complete discontinuance without this provision.
The Federal rule is similar in approach to the New York law, but prohibits discontinuance when a counterclaim has been interposed unless the counterclaim is allowed to remain pending before the court. Fed RCP 41(a) (2). The New York rule contemplates that the same result will be achieved, where justice requires, by the court’s power to impose terms and conditions, except if the parties stipulate or the discontinuance comes within the limited period specified in subd (a)1 of this rule. Other terms that may be imposed include payment of the defendant’s expenses or counsel fees, or that no subsequent action may be brought on the same claim, or that the defendant may put into the record in a subsequent action all or part of the evidence in the record of the discontinued action. See 19 Jud Council Rep 206 (1953).
Subd 3 of RCP 301 has been omitted because it is covered by subd (a) 1 of this rule; the rule is there made applicable to any type of claim and the time limit is restated in terms which apply generally.
The discussion in the notes to CPLR rule 3216 concerning class actions, the powers of a referee and the effect of dismissal on the running of the statute of limitations is equally applicable to this rule. See CPA §§ 23, 26, 469.
Amendment History
Add, L 1962, ch 308; amd, L 1962, ch 318, § 19, eff Sept 1, 1963; L 1981, ch 115, § 27; L 1989, ch 736, § 1, eff July 24, 1989; L 1999, ch 278, § 1, eff July 20, 1999; L 2003, ch 62, § 29 (Part J), eff July 14, 2003; L 2011, ch 473, § 4, eff Jan 1, 2012; L 2022, ch 821, § 8, effective December 30, 2022.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: voluntary discontinuance New Yorkhow to drop a lawsuit in New YorkCPLR 3217 notice of discontinuancetwo-dismissal rule New Yorkstipulation of discontinuance NY