Second Voluntary Discontinuance Operated as an Adjudication on the Merits Requiring Dismissal of Plaintiff’s Third Attempt to Commence the Same Action

Before bringing the instant proceeding, the plaintiff had voluntarily discontinued two prior proceedings involving the same matter. Pursuant to CPLR 3217 (c), the second voluntary discontinuance operated as an adjudication of the merits requiring dismissal of the third action:

CPLR 3217(c) provides that unless otherwise stated, inter alia, in a notice of discontinuance, a voluntary 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.” In this case, the plaintiff voluntarily discontinued the second action, which was based upon the same causes of action as the first action, by notice of discontinuance. Under the circumstances of this case, where there was no legitimate purpose for discontinuing the second action, the second voluntary discontinuance by notice operated as an adjudication on the merits pursuant to CPLR 3217(c)… . Haber v Raso, 2015 NY Slip Op 06113, 2nd Dept 7-15-15