On June 30, 2026, the First Department issued a decision in Matter of Miller v. 22 Ericsson Owner LLC, 2026 NY Slip Op. 04148, holding that a trial court erred in conditioning discontinuance on payment of a significant portion of the opposing party’s fees, explaining:
Petitioner commenced this action for dissolution in 2022. He made this motion to discontinue the action without prejudice three years later, after motion practice and initial discovery exchanges. It is within a court’s discretion to condition an application for a voluntary discontinuance made pursuant to CPLR 3217(b) upon the movant paying the adverse party’s legal fees, costs, and disbursements. However, under the circumstances presented, the court improvidently exercised its discretion to the extent of ordering payment of respondents’ costs from the date of Gordon Rees Scully Mansukhani LLP’s retention to the date of this order granting discontinuance. Although this action had already been pending for three years when the motion to discontinue was filed, respondents had not yet answered the amended petition, discovery was still ongoing, and there had been no depositions. In addition, at least part of the delay was attributable to respondents. We accordingly limit petitioner’s payment of costs to those incurred by respondents in connection with the motion to discontinue. Further, we remand to give petitioner the opportunity to contest the amount of fees sought by respondents.
(Internal citations omitted).