The action was not rendered a nullity by plaintiff's withdrawal of his initial summons and motion for summary judgment in lieu of a complaint, pursuant to CPLR 3213, as the parties' course of conduct reflected an understanding that plaintiff was not discontinuing or abandoning the action. Plaintiff withdrew the summons and motion "without prejudice" after reaching a settlement agreement with defendant, but the agreement expressly stated that the matter would be discontinued "with prejudice" upon defendant's full and complete compliance with its payment obligations. After defendant defaulted, plaintiff and defendant participated in further settlement discussions, court conferences, and motion practice for years before defendant invoked the argument that the action had been discontinued or abandoned.
Rizzo v. Progressive Capital Solutions, LLC, NY Slip Op 01948 (1st Dep't April 13, 2023)
