IN 2011 PLAINTIFF WITHDREW THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT WITHOUT PREJUDICE AND SUBSEQUENTLY ENGAGED IN SETTLEMENT NEGOTIATIONS FOR YEARS; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED AND TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action for a money judgment should not have been dismissed as abandoned and time-barred. In 2011 plaintiff withdrew its motion for summary judgment in lieu of complaint, without prejudice, and continued settlement negotiations for years, demonstrating plaintiff did not intend to abandon the lawsuit:

Supreme Court incorrectly determined that the action had been rendered a nullity by plaintiff’s withdrawal of his initial summons and motion for summary judgment in lieu of a complaint (CPLR 3213), as the parties’ course of conduct reflected an understanding that plaintiff was not discontinuing or abandoning the action. Plaintiff withdrew the summons and motion “without prejudice” after reaching a settlement agreement with Progressive and, by contrast, the settlement agreement expressly stated that the matter would be discontinued “with prejudice” upon Progressive’s full and complete compliance with its payment obligations. After Progressive defaulted, plaintiff and defendant, participated in further settlement discussions, court conferences, and motion practice for years before defendant invoked the argument that the action had been discontinued or abandoned. Rizzo v Progressive Capital Solutions, LLC, 2023 NY Slip Op 01948, First Dept 4-13-23

Practice Point: Although plaintiff withdrew the motion for summary judgment in lieu of complaint, without prejudice, in 2011, plaintiff continued settlement negotiations for years, demonstrating plaintiff did not intend to abandon the action. The dismissal of the action as abandoned was reversed.