On October 9, 2025, Justice Reed of the New York County Commercial Division issued a decision in Miller v. 22 Ericsson Owner LLC, 2025 NY Slip Op. 51595(U), allowing a plaintiff to discontinue an action without prejudice conditioned on the plaintiff paying the defendant’s fees and expenses, explaining:
CPLR 3217 governs the voluntary discontinuance of a claim by any party, whether with or without leave of court. Any party asserting a claim may discontinue it without an order by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or required, and, if a matter has been submitted to the court or jury, by a writing signed by the attorney for all parties. If the parties cannot agree to the terms of discontinuance, then the court is vested with the authority to discontinue an action upon terms the court deems proper and just.
Here, petitioner Larry Miller submits an affirmation in support of his motion, seeking dismissal of this action without prejudice. Petitioner affirms, under penalty of perjury, that, after consultation with his counsel, he has decided not to pursue the claims he has presented in this case. According to petitioner, he has elected to proceed derivatively in a separate action commenced in Queens County Supreme Court. The current matter before this court involves only individual claims asserted by petitioner; none of the claims presented here has been asserted derivatively. Petitioner now believes that the Queens Action is the proper mechanism for obtaining relief.
In opposition, respondent submits that the instant request is borne from petitioner’s frustration with this court’s rulings and denial of numerous applications in the three years since the action was filed and argues that the request to discontinue is nothing more than an attempt to engage in improper forum shopping. According to respondent, both suits involve substantially the same parties and issues. Each action asserts claims for breach of contract, breach of fiduciary duty, improper refusal to disclose, and mismanagement of the nominal companies. In the Queens action, as was the case here, petitioner demands judgment against respondent for compensatory damages and equitable relief and seeks preliminary injunctive relief.
. . .
Here, the court can find no prejudice or special circumstances to warrant this court’s refusal to recognize petitioner’s request to discontinue this action. The determination to permit plaintiff to voluntarily withdraw is generally within the sound discretion of the court, but the court cannot compel a party to litigate.
Any question regarding the viability of the Queens action should be left to the Honorable Justice deciding the matter before it in that venue, and this court will not presume petitioner seeks discontinuance with malicious intent. There is no evidence before the court to suggest such malice. Absent special circumstances or documented prejudice, a discontinuance should be granted.
However, there can be no question that being forced to defend an unnecessary action for three years comes with associated costs.
In Carter v. Howland Hook Housing Corporation, the Appellate Division upheld a lower court order that granted a plaintiff’s request to voluntarily discontinue its action in New York County, to permit plaintiff to file a second action in Kings County. There, the lower court conditioned discontinuance upon plaintiff’s payment of defendant’s costs, disbursements, and attorneys’ fees to eliminate any prejudice and burden attributable to plaintiff’s discontinuance in New York County.
Similarly here, respondents submit that they have incurred costs and expenses associated with the filing and defending of motions, appearances in court for oral argument, disclosures, written discovery, and meet-and-confers for the three years the litigation has been ongoing in New York County. Respondents request that, should this court find that discontinuance is proper, the discontinuance be conditioned upon the payment of respondents’ costs and fees associated with this action. The court finds that respondents’ request is proper.
Accordingly, it is hereby
ORDERED that plaintiff’s motion to discontinue this action is granted, and this action is hereby discontinued, without prejudice, conditioned upon the payment by petitioner to the respondents for respondents’ costs, expenses and disbursements from the date of commencement of this action to the date of this order granting discontinuance . . . .
(Internal quotations and citations omitted).