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CrimDefense
CrimDefense, CriminalDefenseAtty
Category: Criminal Law
Satisfied Customers: 25928
Experience:  10+ years defending Misdemeanor and Felony cases.
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I had $ 46,400.00 of property stolen. Filed a lawsuit in New

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I had $ 46,400.00 of property stolen. Filed a lawsuit in New York Court. Attorney has filed a Motion to Dismiss with Prejudice.

Could I withdraw my lawsuit as a response to the Motion to dismiss with prejudice and file at another time?
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. You can likely take a voluntarily dismissal and withdraw the case, refiling it again, before the statute of limitation expires. It is not uncommon for an attorney to file a motion to dismiss WITH prejudice and if anything, the Judge may dismiss it, WITHOUT prejudice or allow you to amend the complaint, if you wanted to, to correct whatever the problem/issues are. A plaintiff is not forced to proceed, so if you wanted to, you could dismiss your complaint without prejudice and would need to file the appropriate motion with the court.

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Customer: replied 3 years ago.

The Motion to Dismiss is because its been over a year and I didn't file a Note of Issue. Can I withdraw the complaint now or to late?

It is at the discretion of the Judge to dismiss the case WITH prejudice and that is often an extreme order, since it prevents you from refiling the case. In a situation like this, you can try and remedy the situation and file the note of issue or if you wanted to, take a voluntary dismissal. Remember that the time is still running on the case and if you are going to refile it, you should still be within the statute of limitations.
Customer: replied 3 years ago.

How long do I have to refile? Would a letter to the Judge and Clerk asking to dismiss be enough or a Motion? What would I need to say in letter or Motion? Do I have to state Why I want to dismiss?

Please allow me some additional time to research your follow up questions. Thank you.
I have provided a link for you below, that states the times in which you have to refile, based upon the cause of action.

http://codes.lp.findlaw.com/nycode/CVP/2

Moreover, I have provided you with the codes regarding the situations and what must be done, for a dismissal. You need to apply your facts to what is stated and proceed in that manner.

http://law.justia.com/codes/new-york/2012/cvp/article-32/r3217

Based upon what you described above, it is going to take a motion, unless the other party is going to enter into an agreed order to dismiss it WITHOUT prejudice.
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