Dolitsky v. Sloan Kettering Institute, 67 N.Y.2d 908 (1986)
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A court cannot grant a defendant’s motion to dismiss an action with prejudice under CPLR 3217(b) unless the plaintiff asserting the claim consents to or joins in the motion.
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Summary
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Dolitsky sued his former employer, Sloan Kettering, for defamation and prima facie tort. After his initial complaint was dismissed, Dolitsky stated he would file in federal court and sought return of his security bond. Sloan Kettering cross-moved to dismiss the state action “with prejudice.” The Supreme Court granted Dolitsky’s motion but also dismissed his action with prejudice. The Appellate Division affirmed. The Court of Appeals reversed, holding that CPLR 3217(b) requires the plaintiff’s consent or joinder for a defendant to obtain a dismissal with prejudice; because Dolitsky opposed the dismissal, the lower court erred.
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Facts
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Plaintiff Dolitsky commenced an action against his former employer, Sloan Kettering, alleging defamation and prima facie tort.
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Dolitsky’s original complaint was dismissed due to non-compliance with CPLR 3014 and 3024(a), with leave to replead.
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After his motion for leave to replead was denied, Dolitsky moved for return of his security bond, stating he would instead commence an action in federal court.
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Prior to the defendant’s response in state court, Dolitsky filed suit in Federal District Court in New Jersey, alleging the same causes of action asserted in the state action, as well as claims for employment discrimination.
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Defendants opposed Dolitsky’s motion and cross-moved for dismissal of the state action “with prejudice” under CPLR 3217(b), releasing the security bond to them as partial reimbursement for costs, and awarding additional costs, disbursements, and counsel fees.
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Procedural History
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The Supreme Court granted Dolitsky’s motion for release of his security bond upon payment of one bill of costs to the defendants and dismissed Dolitsky’s action with prejudice. It denied the branch of defendants’ cross motion that sought additional costs and counsel fees.
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Dolitsky appealed the dismissal with prejudice to the Appellate Division, which affirmed without opinion but clarified that the dismissal only barred a new action in state court.
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The Court of Appeals granted leave to appeal to address whether the dismissal with prejudice was an abuse of discretion and whether it would have res judicata effect on the pending federal claims.
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Issue(s)
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1. Whether the court abused its discretion as a matter of law by granting the defendant’s cross motion for a dismissal with prejudice when the plaintiff opposed the dismissal.
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2. Whether a dismissal with prejudice in state court would be res judicata as to the plaintiff’s pending claims in federal court.
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Holding
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1. Yes, because CPLR 3217(b) only authorizes a voluntary discontinuance by court order on motion of