CPLR R. 3217 Voluntary discontinuance
(a) Without an order
Tutt v Tutt, 2009 NY Slip Op 03511 (App. Div., 2nd, 2009)
Pursuant to CPLR 3217(a)(1), a party may discontinue an action
without court order by serving "a notice of discontinuance at any time
before a responsive pleading is served or within twenty days after
service of the pleading asserting the claim, whichever is earlier."
Where no pleadings have been served, [*2]therefore,
the plaintiff has the "absolute and unconditional right" to discontinue
the action by serving a notice of discontinuance upon the defendant
without seeking judicial permission (Battaglia v Battaglia, 59 NY2d 778, revg on dissenting mem 90 AD2d 930, 933; see DeLuise v DeLuise, 288 AD2d 135, 136; Newman v Newman, 245 AD2d 353).
The right to discontinue a divorce action under CPLR 3217(a)(1)
may be waived, however, under circumstances demonstrating the
plaintiff's voluntary and knowing relinquishment of that right (see Minkow v Metelka, 46 AD3d 864; cf. Giambrone v Giambrone,
140 AD2d 206, 207). "A valid waiver requires no more than the voluntary
and intentional abandonment of a known right which, but for the waiver
would have been enforceable," and it "may arise by either an express
agreement or by such conduct or a failure to act as to evince an intent
not to claim the purported advantage" (Golfo v Kycia Assoc., Inc., 45 AD3d 531, 532-533 [internal quotation marks omitted]; see Peck v Peck,
232 AD2d 540). "A so-ordered stipulation is a contract between the
parties thereto and as such, is binding on them and will be construed
in accordance with contract principles and the parties' intent" (Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [internal quotation marks omitted]).
By the clear and unambiguous terms of the so-ordered stipulation
here, the husband waived his right to serve a notice of discontinuance
more than 20 days after December 1, 2006, and thereby discontinue the
action pursuant to CPLR 3217(a). His notice of discontinuance served in
November 2007, therefore, was a nullity, and the Supreme Court properly
vacated it upon the wife's motion.
The bold is mine