Notice of Voluntary Discontinuance Filed After Opponents’ Motions to Dismiss Is Untimely

The First Department determined plaintiff’s (BDO’s) notice of voluntary discontinuance was untimely because it was filed after the defendants filed motions to dismiss:

BDO unilaterally filed a notice of voluntary discontinuance. This notice was untimely because BDO served it after defendants filed their motions to dismiss (see CPLR 3217[a][1]; … David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:8 [“[t]he 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”]). Indeed, if a motion to dismiss is not a “responsive pleading” within the meaning of CPLR 3217(a)(1), a plaintiff would be able to freely discontinue its action without prejudice solely to avoid a potentially adverse decision on a pending dismissal motion. This Court has made clear that such conduct is improper … . Thus, BDO’s notice was ineffective and a nullity… . BDO USA, LLP v Phoenix Four Inc, 2014 NY slip Op 00410, 1st Dept 1-23-14