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A stipulation of discontinuance is a written agreement used to end a lawsuit in New York. Under New York Civil Practice Law and Rules (CPLR) 3217, the attorneys of record for all parties generally sign the stipulation before the case is submitted to the court or jury. The document should state whether the case ends with or without prejudice because that choice can affect whether the claim may be brought again.
The term is especially common in New York. Other states use different language and procedures. In California, for example, a party generally asks the court to dismiss a civil action using a request for dismissal rather than a New York stipulation of discontinuance.
This article explains the New York terminology and provides a limited California comparison. It is general information, not legal advice for a specific case.
What Does Stipulation of Discontinuance Mean?
A stipulation of discontinuance is an agreement among the parties to stop a pending lawsuit. It tells the court that the parties have agreed to end all or part of the action on the terms stated in the document.
The stipulation is often filed after a settlement, but settlement is not the only reason a case may be discontinued. The parties may narrow the lawsuit, resolve a procedural dispute, or agree that continuing the case is no longer necessary. A stipulation discontinuing an action is distinct from the settlement agreement itself. The settlement agreement sets the parties’ substantive obligations, while the stipulation addresses the lawsuit’s procedural end.
New York’s rules are jurisdiction-specific. Anyone dealing with a case outside New York should follow the statutes, court rules, and forms applicable in that state.
Notice of Discontinuance vs. Stipulation of Discontinuance
New York CPLR 3217 provides more than one method for voluntarily ending a case. The correct method depends on the case’s timing and whether the other parties agree.
1. Notice of discontinuance
A plaintiff may be able to discontinue an action without a court order by serving a notice of discontinuance before a responsive pleading is served. If no responsive pleading is required, CPLR 3217 permits notice within 20 days after service of the pleading asserting the claim. The statute contains additional rules, including a two-dismissal rule that can make a second notice-based discontinuance operate as an adjudication on the merits in certain circumstances.
2. Stipulation of discontinuance
Before the case is submitted to the court or jury, the attorneys of record for all parties may generally sign a written stipulation discontinuing the action. Exceptions apply when an infant, judicially declared incompetent person, or person for whom a conservator has been appointed is a party, or when a person who is not a party has an interest in the subject matter of the action.
3. Discontinuance by court order
When neither the notice nor stipulation procedure applies, a party may ask the court to order a discontinuance on terms and conditions the court considers proper. The court may also protect the rights of other parties and determine issues such as costs.
Because the procedural route can change the legal effect of the dismissal, parties should not treat “notice,” “stipulation,” and “order” as interchangeable terms.
With Prejudice vs. Without Prejudice
The most important language in many discontinuance documents is whether the case ends with prejudice o without prejudice.
- Without prejudice generally means the dismissal itself does not prevent the claim from being filed again. Other barriers may still apply, including the statute of limitations, a settlement release, prior dismissals, or a court order.
- With prejudice generally means the claim is ended on the merits and ordinarily cannot be brought again between the same parties based on the same cause of action.
Under CPLR 3217(c), a voluntary discontinuance is generally without prejudice unless the notice, stipulation, or court order states otherwise. That default does not make every refiled claim viable. A signed release, the settlement terms, limitations periods, claim-preclusion rules, and the specific language of the discontinuance may produce a different result.
Before signing, confirm exactly which claims and parties are covered. A document may discontinue the entire action, only certain claims, or claims against only one defendant.
Who Must Sign a New York Stipulation of Discontinuance?
CPLR 3217(a)(2) generally calls for a written stipulation signed by the attorneys of record for all parties. If a party is self-represented, the signature requirements should be checked against the applicable statute, filing system, and court rules.
The common assumption that every plaintiff, defendant, and lawyer must personally sign every stipulation is too broad. The required signatures depend on representation, the parties affected, the type of case, and any special interests involved.
New York CPLR 2104 separately provides that an agreement between parties or their attorneys concerning a matter in an action is not binding unless it is made in open court or reduced to a signed writing, with additional rules for certain electronic communications and settlements. Clear, complete drafting matters because a stipulation can have binding consequences beyond simply changing the court calendar.
What Should the Document Include?
The exact format may vary by court and case, but a stipulation of discontinuance commonly identifies:
- the court, county, index number, and case caption;
- the parties and claims being discontinued;
- whether the discontinuance is with or without prejudice;
- whether either side may recover costs, fees, or disbursements;
- any conditions that must occur before the discontinuance becomes effective;
- the required signatures and dates; and
- proof that the document was filed and served as required.
A stipulation should match the settlement agreement. Inconsistent language about covered claims, payment, confidentiality, releases, liens, or enforcement can create a new dispute after the parties believed the original case was resolved.
How Is a Stipulation of Discontinuance Filed in New York?
New York procedure generally requires the discontinuance document to be filed with the clerk of the county where the action is pending. Rule 202.28 of the Uniform Civil Rules also requires parties to notify the court promptly when a filed action has been wholly or partially settled, discontinued, or otherwise disposed of.
A practical filing sequence often includes:
- Confirm the settlement or other basis for ending the case. Review payment terms, releases, liens, confidentiality provisions, and any remaining claims.
- Draft the correct document. Determine whether the matter calls for a notice, a stipulation, or a court order.
- State the legal effect clearly. Specify the claims and parties covered and whether the discontinuance is with or without prejudice.
- Obtain the required signatures. Confirm that everyone whose consent is required has signed in an acceptable form.
- File and serve the document. Follow the county clerk’s procedures and any electronic-filing requirements.
- Keep the filed copy. Verify the docket reflects the disposition and retain the settlement agreement, release, payment records, and filed discontinuance.
Local and case-specific requirements can differ. Matters involving minors, incapacitated people, estates, class actions, nonparty interests, or judicial approval require additional care and may not be concluded through an ordinary stipulation.
Should the Case Be Discontinued Before Settlement Payment?
Timing should be addressed in the settlement documents. A plaintiff may give up meaningful leverage if the case is discontinued with prejudice before the defendant completes the required payment or other performance. On the other hand, a defendant may want the signed discontinuance and release before releasing funds.
New York CPLR 5003-a establishes prompt-payment procedures for many settlements. The general rule provides a 21-day payment period after the settling defendant receives the required release and stipulation discontinuing the action, although different periods and requirements apply to the state, municipalities, public corporations, and settlements requiring judicial approval.
The parties can structure delivery through counsel, escrow, or another agreed process. The right approach depends on the settlement, the defendant, and whether approval or lien resolution is required. In an injury case, personal injury liens can also affect the timing and net settlement payment, although lien rules differ by jurisdiction and type of lien.
What Happens After the Stipulation Is Filed?
Once an effective stipulation is filed, the court can mark the covered claims or action as discontinued. Future conferences, discovery, motions, or trial dates concerning those claims generally should not proceed.
Filing the stipulation does not necessarily complete every settlement obligation. The parties may still need to:
- exchange releases or other closing documents;
- make or confirm settlement payments;
- resolve liens and reimbursement claims;
- complete confidentiality or non-disparagement obligations;
- dismiss related claims in another court; or
- enforce the agreement if a party fails to perform.
A claimant should retain copies of the settlement agreement, release, stipulation, filed confirmation, and final settlement accounting.
Can a Stipulation of Discontinuance Be Withdrawn or Vacated?
Not automatically. A filed stipulation is not simply an informal notice that a party can retract at will. New York courts generally treat stipulations as binding agreements, especially when they are clear and properly executed.
A party seeking to vacate a stipulation may need consent from the other parties or a court order and a recognized legal basis, such as fraud, collusion, mistake, accident, or another ground sufficient to invalidate an agreement. The outcome depends heavily on the document’s wording and the facts.
This is why blanket statements that a stipulation can never be reopened are also inaccurate. Relief may be possible in limited circumstances, but it should not be assumed. A party who believes a stipulation was signed through mistake or misconduct should seek prompt advice from counsel admitted in the relevant jurisdiction.
Why Does This Matter in a Personal Injury Settlement?
A personal injury case may settle at any point, including after a lawsuit has been filed. Understanding the stages of a personal injury lawsuit helps explain why the settlement agreement, release, payment, and procedural dismissal must be coordinated.
Before an injured plaintiff authorizes a discontinuance, counsel may need to confirm:
- the settlement amount and payment deadline;
- which defendants and claims are released;
- whether the dismissal is with prejudice;
- how medical, insurance, Medicare, Medicaid, or other liens will be handled;
- whether a minor, estate, or incapacitated person requires court approval;
- whether related claims remain pending; and
- what happens if payment is late or another term is breached.
The discontinuance should be one coordinated part of closing the case, not a substitute for reviewing the settlement’s full legal and financial consequences.
Is a Stipulation of Discontinuance Used in California?
California generally uses different terminology. Under California Code of Civil Procedure section 581, a plaintiff may dismiss an action or part of an action in specified circumstances, subject to statutory limits. California courts commonly use Judicial Council form CIV-110, Request for Dismissal.
A California request for dismissal can also be with or without prejudice, and timing matters. A plaintiff’s right to dismiss may become limited after trial begins or after certain dispositive events. Court approval may be necessary in cases involving minors, incapacitated people, class claims, or other protected interests.
This article should not be used as a filing guide for California. A California litigant should review the current statute, applicable court rules, and the official California Courts instructions. If your matter is a California injury claim, State Law Firm’s Abogados de lesiones personales en Sherman Oaks can explain how a settlement, release, liens, and request for dismissal may fit together in your case.
Preguntas frecuentes
Is a stipulation of discontinuance the same as a settlement agreement?
No. The settlement agreement establishes what the parties have promised to do. The stipulation of discontinuance ends the covered court claims. The documents should be coordinated, but they serve different functions.
What is a notice of discontinuance?
In New York, a notice of discontinuance is a method a plaintiff may use to end a claim without the other parties’ signatures or a court order during the early period described in CPLR 3217(a)(1). The deadline and two-dismissal rule should be reviewed before using it.
Does a stipulation of discontinuance have to say “with prejudice”?
No. CPLR 3217 generally makes a voluntary discontinuance without prejudice unless the document or court order states otherwise. Settlement-related stipulations often say “with prejudice,” but the correct language depends on the agreement and intended legal effect.
Does every party need to sign?
CPLR 3217(a)(2) generally requires the attorneys of record for all parties to sign a written stipulation. Representation, affected parties, special interests, and case-specific rules can alter what is required.
Can a case be reopened after a stipulation of discontinuance?
A stipulation with prejudice is intended to provide finality, but limited relief may be available through consent or a court order on recognized grounds such as fraud or mistake. A discontinuance without prejudice does not itself bar refiling, although other legal barriers may.
What form ends a California civil case?
California litigants commonly use Judicial Council form CIV-110, Request for Dismissal, subject to Code of Civil Procedure section 581 and any special approval requirements.
Official Legal Sources
- New York CPLR 3217: Voluntary discontinuance
- New York CPLR 2104: Stipulations
- New York CPLR 5003-a: Prompt payment following settlement
- New York Uniform Civil Rule 202.28
- California Code of Civil Procedure section 581
- California Courts: Dismiss your civil case
- California Courts: CIV-110 Request for Dismissal
Get Help With a California Personal Injury Case
State Law Firm represents injured people in California. If a California personal injury claim is approaching settlement or dismissal and there are questions about releases, liens, payment, or remaining claims, a legal review may help identify issues before the case is closed. Contact State Law Firm for a consultation about your circumstances.
This article provides general legal information and does not create an attorney-client relationship. Laws, court rules, and case-specific deadlines may change. Consult an attorney licensed in the jurisdiction where your case is pending.
