CPLR § 205 New action by plaintiff
Duran v Long Is. R.R. Co., 2009 NY Slip Op 00644 (App. Div., 2nd)
The plaintiff allegedly was injured when he was struck by a Long
Island Rail Road train, while he was on the tracks. The plaintiff
timely commenced an action to recover damages for the defendant's
alleged negligence (hereinafter the first action). The allegations of
the complaint in the first action allegedly presented an inaccurate
version of how the plaintiff came to be on the tracks. The plaintiff
moved for leave to amend his pleading to allege a different version of
how he came to be on the tracks. The Supreme Court denied the motion
for leave to amend, noted the impending date to file a note of issue in
the first action, and dismissed the first action without prejudice to
the commencement of a timely new action.
The plaintiff commenced the instant action (hereinafter the
second action) within six months after the dismissal of the first
action. The defendant moved to dismiss the complaint in the second
action on the ground that it was not commenced within the time
specified by Public Authorities Law § 1276. The Supreme Court denied
the motion to dismiss. We affirm.
The timely commencement of the
first action gave the defendant notice of the plaintiff's intent to
seek damages for having been struck by the train (see George v Mt. Sinai Hosp., 47 NY2d 170, 177-178). The second action was based upon the same occurrence as the first action (cf. Titus v Poole, 145
NY 414, 421; L 1978, ch 51; Judiciary Memorandum, 1978 McKinney's
Session Laws of NY, at 1909-1910). Given the circumstances of this
case, the plaintiff was entitled to the benefit of CPLR 205(a) (cf. English v Ski Windham Operating Corp., 263 AD2d 443); and the second action was timely commenced.
The bold is mine.