Is a notice of discontinuance acceptable against a party who only filed a notice of appearance?
Short answer
Generally, yes. Under New York law, a notice of appearance alone is not a responsive pleading, so the claimant may ordinarily discontinue by notice under CPLR 3217(a)(1), provided the notice is served and filed as required and no applicable exception or waiver applies.[1]
Analysis
CPLR 3217(a)(1) permits a claimant to discontinue without a court order by serving a notice of discontinuance before a responsive pleading is served. A defendant’s appearance may be made by serving either an answer, a notice of appearance, or certain motions, but that does not make a notice of appearance an answer or responsive pleading.[2]
New York courts have treated a notice of discontinuance as available where no complaint or responsive pleading has been served. See A.K. v. T.K., 151 A.D.3d 875, 876 (N.Y. App. Div. 2017); Giambrone v. Giambrone, 140 A.D.2d 206, 207–08 (N.Y. App. Div. 1988). The right may be affected by a prior agreement or conduct establishing a knowing waiver; for example, a so-ordered stipulation can waive the right to discontinue by notice.[3]
Practical qualifications:
- Serve the notice on all parties and file it with proof of service, as CPLR 3217(a)(1) requires.[1]
- Confirm that no answer or other responsive pleading has since been served, and check whether a stipulation or court order limits unilateral discontinuance.
- A prior discontinuance of an action based on or including the same cause of action may make a later notice operate as an adjudication on the merits.[1]