On May 23, 2022, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Bank of Am., N.A. v. Dollar Phone Corp., 2022 NY Slip Op. 31777(U), holding that after a motion to dismiss has been made, any discontinuance must be by court order or consent, explaining:
The Fourth Department clearly holds that a motion to dismiss is not a responsive pleading pursuant to CPLR §3217{a) (1) and
(Internal citations omitted).
therefore notices of discontinuance served after a motion to dismiss has been filed is not untimely. However, the First Department holds a motion to dismiss is a responsive pleading and consequently once a motion to dismiss is filed a notice of discontinuance can longer be served. Thus, there is a conflict among the various Divisions of the Appellate Division. While the Second Department has yet to directly issue a ruling on this matter it appears the Second Department agrees with the First Department. In any event, other courts in Kings County have expressly decided that a motion to dismiss is a responsive pleading and thus no notice of discontinuance can be served. This court adopts that conclusions reached in High Class and therefore the notice of discontinuance was invalid. Consequently, any request for a discontinuance must be made by order of the court upon proper notice to all parties.