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Posted: July 31, 2015

Second Voluntary Discontinuance is Adjudication the Merits Barring Further Assertion of Claims

On July 15, 2015, the Second Department issued a decision in Haber v. Raso, 2015 NY Slip Op. 06113, holding that when a plaintiff brings, and then voluntarily discontinues, two actions relating to the same subject matter, further claims are barred, explaining:

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). Accordingly, the Supreme Court should have granted the defendants’ motion to dismiss this action as barred by the doctrine of res judicata.

(Internal quotations and citations omitted) (emphasis added).

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