Headley v. Noto

Defendant moves to dismiss the complaint upon the ground that plaintiffs by voluntarily discontinuing two previous actions for the same relief as is now sought are under CPLR 3217 (subd. [e]) barred from proceeding with the action since the last discontinuance, which was by way of notice, operates as an adjudication on the merits. Defendant also moves to dismiss the complaint on the ground that he was improperly served.

Plaintiffs cross-move to permit them to withdraw the second notice of discontinuance and in lieu thereof to permit them to discontinue the last action without prejudice; and to…