In contrast to rule 41 (a) (2), rule 41 (a) (1) establishes a procedure for termination of an action without a court order. Although entitled dismissal “By Plaintiff; By Stipulation,” in fact rule 41 (a) (1) permits a voluntary dismissal of a federal action in either of two ways, as follows: “(i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.” As further provided by rule 41 (a) (1): “Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.”
It has previously been determined that “a plaintiff is not entitled to the six-month extension afforded by CPLR 205 (a) following the dismissal of her similar and timely-commenced Federal action” when “that action was terminated by voluntary discontinuance pursuant to rule 41 (a) (1) (ii)”. Although the parties have not cited, and this court’s own research has not disclosed, any authority addressing a voluntary dismissal pursuant to rule 41 (a) (1) (i), no basis exists for a disparate treatment of the two forms of termination of an action permitted by rule 41 (a) (1), since both are voluntary discontinuances, which are permissible as of right when the requisite notice or stipulation has been filed by the plaintiff. Thus, absent other considerations, plaintiffs may not rely upon section 205 (a) to defeat the statute of limitations attack upon the state complaint asserted by the non-answering federal accident defendants.
Nor is there any inconsistency or, as plaintiffs characterize, “contradiction,” in treating a dismissal without prejudice under rule 41 (a) (1) as a termination which prevents a plaintiff from looking to section 205 (a) to save a subsequently-filed state court action. While the “without prejudice” language contained in rule 41 (a) (1) is certainly binding upon the federal courts with respect to a second federal action filed by a plaintiff whose first federal court action is voluntarily dismissed, it cannot be credibly argued that that wording is determinative of a plaintiff’s right to an extension of his time to commence a second action in a court of any state. Moreover, there is nothing contradictory in addressing a voluntary termination which is a matter of right, as is a rule 41 (a) (1) dismissal, different from a termination which is not automatic, and requires a court order, as is a rule 41 (a) (2) dismissal. Hence, contrary to plaintiffs’ contention, merely because the latter form of dismissal is not one which deprives a plaintiff of the benefits of section 205 (a), as Ext bank held, does not compel the conclusion that all forms of voluntary terminations of medical actions must be similarly treated for the purposes of section 205 (a).
Plaintiffs’ second argument is founded upon an analogy to rule 41 (a) (1) (ii) stipulated dismissals. It is certainly true that section 205 (a) “operates to save an action that has been terminated by means of a voluntary discontinuance pursuant to a stipulation which contains an express statement of intent to preserve the right to commence a new action under that provision”. Thus, if there was any evidence that the non-answering federal defendants agreed that the rule 41 (a) (1) (i) dismissal of the federal action was without prejudice to plaintiffs’ right to commence a new state court action, this court would agree with their position that they may seek the benefits of section 205 (a).
Here, however, what is glaringly absent is the existence of any such agreement. Indeed, as is undisputed, although plaintiffs attempted to obtain a stipulation of discontinuance from all defendants, they refused to execute a stipulation expressing the parties’ understanding that the voluntary dismissal of the federal action was without prejudice to plaintiffs’ right to pursue a new action in state court. Therefore, this argument is unavailing.
In view of that determination, resolution of the attack upon the spousal claim requires no extended discussion. Because the spousal claim is one which is derivative and “has no existence separate and distinct from [decedent’s personal injury] claim,” dismissal of the personal injury claim “also requires dismissal of the [spousal claim], which depends on the same claim[s] of negligence”. Therefore, the spousal claim is dismissed as against the non-answering federal defendants.
As one commentator has cautioned: “The lawyer about to discontinue an action must always remember, however, that a voluntary discontinuance, by any method at all, is an exception to CPLR 205 (a) and does not get the six months. A discontinuing plaintiff planning to start over must always make sure either that the original statute of limitations is still alive, or that the plaintiff has in hand an agreement by the defendant not to interpose the statute of limitations defense in the new action.”
In this case, plaintiffs did not merely fail to timely commence their claim for personal injury sustained by their deceased father, but also did not adequately consider the impact of their voluntary dismissal of their federal court action. By overlooking the governing time limitations and procedural rules, they triggered certain of the “mines” that remain in the field of the law, to their significant detriment.