CPLR R. 3217 Voluntary discontinuance
(a) Without an order
McMahan v McMahan, 2009 NY Slip Op 04165 (App. Div., 1st, 2009)
As against appellant, the action should not have been discontinued
without prejudice where plaintiff's notice of discontinuance was
untimely under CPLR 3217(a) (see Citidress II Corp. v Hinshaw & Culbertson LLP, 59 AD3d 210,
211 ), and was apparently served in order to avoid an adverse
decision on a pending motion to dismiss the complaint with prejudice
and to enable plaintiff to raise the claims she makes herein in another
pending action (see NBN Broadcasting v Sheridan Broadcasting Networks,
240 AD2d 319 ). The foregoing renders academic appellant's claim
that the motion court should have granted its motion to dismiss the
complaint on default (see 176-60 Union Turnpike v Howard Beach Fitness Ctr., 271 AD2d 327, 328 ).
The bold is mine.