While I was proofreading a legal document last night, my iPhone pinged alerting me that an email awaited my attention. I glanced at my smartphone perched atop an avalanche of arguably organized files and saw an email time-stamped 5:21pm from the “Real Housewives of New Jersey” star Teresa Giudice’s former bankruptcy lawyer, James Kridel.
During our telephone conversations and meetings, Mr. Kridel has routinely conducted himself with the utmost professionalism and candor. Based on his cogent and thoughtful breakdown of legal matters, I’ve relished his intellect and enjoyed our discussions. He has unsparingly provided me with excellent insight into the lawsuit Teresa Giudice filed against him back in December. Last night was no exception.
Mr. Kridel wrote me this yesterday saying that the $5 million “New York matter” Teresa Giudice filed against him was “dismissed without prejudice.” (Teresa was suing Mr. Kridel in Manhattan Supreme Court for his representation of her during her 2009 bankruptcy filing. See also: Exclusive Interview with James Kridel Part 2.
The Notice of Discontinuance, dated July 24, 2015, states: “PLEASE TAKE NOTICE that pursuant to N.Y. C.P.L.R. 3217(a)(1) the attorney for the plaintiff, Teresa Giudice, hereby discontinues the above-entitled action against the defendant, James A. Kridel, Jr., Esq. d/b/a The Kridel Law Group without prejudice and without costs to either party as against the other.”
Teresa’s lawyer, Carlos J. Ceuvas, signed the July 24 document. The Affirmation of Service demonstrates that Carlos J. Ceuvas served James Kridel with a true copy of the Notice of Discontinuance on Friday, July 24 by first class mail. Mr. Kridel ostensibly received the Notice of Discontinuance on July 27, 2015.
CPLR § 3217(a) identifies when a party may voluntarily discontinue an action without an order of the court. CPLR § 3217(a)(1), amended in 2011 and effective January 1, 2012, provides:
Any party asserting a claim may discontinue it without an order by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court.
Prior to the 2011 amendment, CPLR § 3217(a)(1) contained more severe restrictions on the timeliness of the service and filing of the notice of the discontinuance. As amended, the spirit of the statute remains the same, however, the current version is designed to provide enough flexibility in the early stages of cases for parties to settle claims. Do you think Teresa discontinued her suit against Mr. Kridel in an effort to resolve the matter?
Some reasons to dismiss a case without prejudice include: the case is partially settled and the plaintiff agrees to drop it in exchange for a total settlement. The plaintiff, however, will file a new claim in court if the defendant does not keep their agreement. (We know this is not the case here since there has been no settlement between Teresa and her former lawyer.) Another motivation behind Teresa discontinuing her malpractice suit is because she is not ready to go to court and she has not been able to serve the defendant.
Is the legal malpractice suit over now? That depends on whether Teresa is able to find another attorney to take on the case. But for today, it looks like a win for Mr. Kridel. Teresa could attempt to file in another jurisdiction or again in New York. Since this case was discontinued without prejudice, it means the court closes the case but will allow other suits to be filed on the same claim (if the statute of limitations has not run out). In New York, the statute of limitations for legal malpractice cases is three years from the date of malpractice. See also: Teresa Giudice’s Erroneous Lawsuit Against James Kridel: Evidence Teresa LIED In New Lawsuit
A plaintiff is not subsequently barred from suing the same defendant on the same cause of action when a court grants a dismissal without prejudice of his or her case. Such a dismissal operates to terminate the case. It is not, however, a final disposition of the controversy on the merits. It effectively treats the matter as if the lawsuit had never been commenced, but it does not relieve a plaintiff of the duty of complying with the statute of limitations, the time limit within which his or her action must be commenced.
Note that if an action on the same cause in any court, state or federal, has previously been discontinued by any method at all, a discontinuance by notice in the second suit will automatically operate as a final judgment on the merits against the discontinuer (Teresa). It is only when the second suit is discontinued by notice that this result occurs; a discontinuance by stipulation or order will not be an automatic adjudication on the merits.
CPLR § 3217(a)(1) provides that a claim may be discontinued without an order by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court (emphasis added). In this instance, the Summons and Complaint was not served upon defendant James Kridel.
You may recall an Order Extending Time dated March 26, 2015 was signed by the court lengthening Teresa’s time to serve the Summons and Complaint for an additional period of 120 days. This extension would have expired in a few days on July 30, 2015. For further explanation regarding why Teresa may not have served Mr. Kridel, Read: Exclusive Interview with James Kridel Part 1
Where no pleadings have been served, a plaintiff has the “absolute and unconditional right” to discontinue an action without seeking judicial permission by serving a notice upon the defendant. Tutt v. Tutt, 61 A.D.3d 967 (2d Dept. 2009), citing Battaglia v. Battaglia, 59 N.Y.2d 778 (1983). However, a party served with a notice of discontinuance can move to vacate the notice of discontinuance filed by plaintiff on the grounds that said discontinuance is untimely and was improperly filed.
Grab your gavel, join the conversation and tell us why you think the inmate at the Federal Correctional Institution in Danbury, Connecticut (Teresa Giudice) decided to discontinue her case against Mr. Kridel.
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