Matter of Lindenwood Cut Rate Liquors, Ltd. v New York State Liq. Auth., 2018 NY Slip Op 03680 [2d Dept. 2018]

As the petitioner correctly contends, CPLR 205(a) applies not only to actions but also to special proceedings under CPLR article 78 (see Matter of Morris Inv. v Commissioner of Fin. of City of N.Y. , 69 NY2d 933; Matter of Winston v Freshwater Wetlands Appeals Bd. , 224 AD2d 160). The toll of CPLR 205(a) would not apply, however, if the prior proceeding was dismissed on the merits; thus, the court must determine whether the order dismissing the prior proceeding is entitled to res judicata effect (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp ., 93 NY2d 375, 380).

Here, the prior proceeding was dismissed after being marked off the calendar. Contrary to the Authority's contention, "[a] dismissal of an action by being marked off the Trial Calendar is not a dismissal on the merits," and "[a] new action on the same theory is therefore not barred by the doctrine of res judicata" (Lewin v Yedvarb , 61 AD2d 1025, 1026; see Morales v New York City Hous. Auth ., 302 AD2d 571, 571; Gallo v Teplitz Tri-State Recycling , 254 AD2d 253, 253-254; Medalie v Jacobson , 120 AD2d 652). Moreover, there is nothing in the order denying the petitioner's motion to restore the prior proceeding to the calendar which suggests that the prior proceeding was dismissed with prejudice (see Gallo v Teplitz Tri-State Recycling , 254 AD2d at 254).

CPLR 202 [borrowing statute] and CPLR 205(a) [savings statute] [Ct. App]

CPLR 202

CPLR 205(a)

note the amicus


Norex Petroleum Ltd. v Blavatnik, 2014 NY Slip Op 04802 [2014]

This dramatic and long-running contest over control of a lucrative oil field in Western Siberia reduces at present to an open question of New York civil procedure involving the interplay of CPLR 202, New York's "borrowing" statute, and CPLR 205 (a), New York's "savings" statute. When a cause of action accrues outside New York and the plaintiff is a nonresident, section 202 "borrows" the statute of limitations of the jurisdiction where the claim [*2]arose, if shorter than New York's, to measure the lawsuit's timeliness [FN1]. New York's "savings" statute, section 205 (a), allows a plaintiff to refile claims within six months of a timely prior action's termination for reasons other than the merits or a plaintiff's unwillingness to prosecute the claims in a diligent manner.[FN2]

This appeal calls upon us to decide whether a nonresident plaintiff who filed a timely action in a New York federal court may refile claims arising from the same transaction in state court within six months of the federal action's non-merits termination, even though the suit would be untimely in the out-of-state jurisdiction where the claims accrued. We hold that such a lawsuit is not time-barred, and therefore reverse the Appellate Division.[FN3]

Its a long decision, click the case to read the rest.


CPLR § 205(a)

Zaborowski v Local 74, Serv. Employees Intl. Union, AFL-CIO, 2012 NY Slip Op 00366 (2nd Dept., 2012).

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable" (Baptiste v Harding-Marin, 88 AD3d 752, 753; see Rakusin v Miano, 84 AD3d 1051, 1052).

Here, in opposition to the appellant's prima facie showing that the time in which to commence this action has expired, the plaintiff failed to raise an issue of fact as to whether the statute of limitations was tolled pursuant to CPLR 205(a). CPLR 205(a) is not applicable to the instant case, since the plaintiff's similar and timely commenced federal action was terminated by [*2]means of a voluntary discontinuance pursuant to a stipulation which contains no express statement of intent to preserve the right to commence a new action (see Naval v Lehman Coll., 303 AD2d 662; Kourkoumelis v Arnel, 238 AD2d 313; cf. George v Mt. Sinai Hosp., 47 NY2d 170, 180).

Accordingly, the Supreme Court should have granted that branch of the appellant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred.

CPLR § 205(a)

CPLR § 205(a)

Egan v Neghavi, 2011 NY Slip Op 04196 (App. Div., 2nd 2011)

The plaintiff commenced this action to recover damages for medical malpractice and wrongful death on behalf of the decedent, his wife, prior to obtaining letters of administration. The defendants moved to dismiss the complaint with prejudice on the ground that he lacked legal capacity to sue. The Supreme Court dismissed the action without prejudice to the commencement of a new action pursuant to CPLR 205(a). On appeal, the plaintiff contends that, since he ultimately obtained limited letters of administration, the Supreme Court should have granted him leave to amend the caption and complaint instead of dismissing the action. However, the plaintiff did not cross-move or even request such relief in his opposing papers and submitted only expired letters of administration. Under the circumstances, the Supreme Court properly dismissed the complaint without prejudice (see Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Mendez v Kyung Yoo, 23 AD3d 354; Krainski v Sullivan, 208 AD2d 904; Ballav v Deepdale Gen. Hosp., 196 AD2d 520).

I haven't seen 205 pop up in a while.

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two.  As you can see, I fixed it with a mix of crazy glue and sewing thread.  Now when I wear them I look like Sloth and it makes my vision all crazy like.  And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird.  I blame that on my lack of sleep.  What I can't explain is that for second, I was genuinely pissed at Pickachu.1

And onto the law.  Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice.  One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR.  Sure, there are other sections, but you didn't come here for them.  You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp.13 NY3d 511 (Ct. App., 2009), a case I posted way back when.  Next is CPLR 5511.  The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision.  From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post.  Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."2

 In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner.  Everyone should read it.  You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal.  Part of it involves preserving the issues for appeal.  A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010). 

I might add some more later.



1.  I'm recycling facebook updates today.

2.  For more cases discussing what it means to be "aggrieved" click HERE.  I think all of them are from the Appellate Division, Second Department.  Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

§ 205(a) From Up On High

CPLR § 205 Termination of action
(a) New action by plaintiff

Recently the New York Court of Appeals and 2nd Circuit Court of Appeals had occasion to discuss the recently amended CPLR § 205(a).  First, the New York Court of Appeals.  Underlying this decision is the Atlantic Yards fight that has been going on for some time.  For more on the substance of the case, and its potential impact, head over to The Legal Satyricon and Popehat.

Matter of Goldstein v New York State Urban Dev. Corp.,
2009 NY Slip Op 08677 (Ct. App., 2009)

Petitioners’ initial challenge to ESDC’s determination authorizing condemnation of their properties was made in a timely federal court action. The gist of that action was that the disputed condemnation was not supported by a public use and thus violated the Fifth Amendment of the Federal Constitution…In its answer, respondent, while defending the challenged determination on the merits, sought the petition’s dismissal on the ground that it had not been timely brought.


While the concurrence protests that failure to bar this proceeding because it was not commenced within 30 days of subject condemnation determination will impair the Legislature’s comprehensive plan for prompt adjudication of such determinations, this overlooks that it is not in the main the availability of CPLR 205 (a) that has delayed this condemnation, but the availability of a federal forum. Petitioners had every right to litigate their federal claims in federal court and to include in their federal action a supplemental state law cause of action (28 USC § 1367 [a]; City of Chicago v International Coll. of Surgeons, 522 US 156, 169, 171 [1997]). And, even without a state tolling provision, petitioners would have had the right under federal law to recommence their unadjudicated pendant state law claim in state court at the federal action’s conclusion (28 USC § 1367 [d]). However much they may have wished to streamline the process, it was not within the power of state legislators to deprive condemnees of access to federal court to litigate federal constitutional public use issues or to limit the federal courts’ jurisdiction to adjudicate supplemental state law claims (see TBK Partners v Western Union Corp., 675 F2d 456, 460 n 3 [2d Cir 1982], citing Railway Co. v Whitton’s Administrator, 80 US [13 Wall] 270, 286 [1872]; see also Marshall v Marshall, 547 US 293, 298-299, 313 [2006]). This being the case, it is practically beside the point to cavil about the frustration of the state legislative design.

The decision from the Second Circuit discusses the old 205(a), and ultimately dismisses the lawsuit as untimely. You can find the decision over at Full Court Pass, where I found it.  I have a comment there.  With the recent amendment to § 205, and few decisions discussing the statute, these two cases provide some valuable insight.  Neither case discusses what will happen when a case is dismissed for failure to prosecute, where the court made none of the required findings.

CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321

In Pari Delicto 

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(3) the party asserting the cause of action has not legal capacity to sue

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

CPLR § 205 Termination of action

(a) New action by plaintiff.

CPLR § 321 Attorneys
(a) Appearance in person or by attorney

Symbol Tech., Inc. v Deloitte & Touche, LLP, 2009 NY Slip Op 07826 (App. Div., 2nd, 2009)

To obtain a dismissal pursuant to CPLR 3211(a)(1), the defendant
must establish that the documentary evidence which forms the basis of
the defense be such that it resolves all factual issues as a matter of
law and conclusively disposes of the plaintiff's claim (see Leon v Martinez, 84 NY2d 83; see also Sheridan v Town of Orangetown, 21 AD3d 365).

CPLR 3211(a)(7) permits the court to dismiss a complaint that
fails to state a cause of action. The complaint must be liberally
construed and the plaintiff given the benefit of every favorable
inference (see Leon v Martinez, 84 NY2d 83; Aberbach v Biomedical Tissue Serv., Ltd., 48 AD3d 716; Mitchell v TAM Equities, Inc., 27
AD3d 703). The court must also accept as true all of the facts alleged
in the complaint and any factual submissions made in opposition to the
motion (see 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11
AD3d 493). If the court can determine that the plaintiff is entitled to
relief on any view of the facts stated, its inquiry is complete and the
complaint must be declared legally sufficient (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Stucklen v Kabro Assoc., 18
AD3d 461). While factual allegations contained in the complaint are
deemed true, bare legal conclusions and facts flatly contradicted on
the record are not entitled to a presumption of truth (see Lutz v Caracappa, 35 AD3d 673, 674l; Matter of Loukoumi, Inc., 285 AD2d 595).

Finally, CPLR 3211(a)(5) permits the defendant to seek and
obtain a dismissal of one or more causes of action asserted against it
on the ground that the cause of action is barred by the statute of


The doctrine of in pari delicto is an equitable defense based on
agency principles which bars a plaintiff from recovering where the
plaintiff is itself at fault
(see Ross v Bolton, 904 F2d 819, 824-825; Matter of Food Management Group v Rattet, 380 BR 677, 693-694; Albright v Shapiro, 214 AD2d 496; Bullmore v Ernst & Young Cayman Is., 20
Misc 3d 667, 670). Moreover, the misconduct of managers acting within
the scope of their employment will normally be imputed to the
corporation (see Wight v Bank America Corp., 219 F3d 79, 86; Center v Hampton Affiliates, 66 NY2d 782, 784; Christopher S. v Douglaston Club, 275
AD2d 768, 769). The underlying concept is that the actions of an agent
can be imputed to a corporation when its agent acts within the scope of
his or her employment (see Center v Hampton Affiliates, 66 NY2d at 784).

Under New York law, the doctrine of in pari delicto is subject to the "adverse interest" exception [FN2] (see Center v Hampton Affiliates, 66
NY2d 782). In this case, Symbol's amended complaint is sufficient to
trigger the adverse interest exception to the in pari delicto doctrine.

The "adverse interest" exception is a method by which a
plaintiff corporation can demonstrate that its agent's actions should
not be imputed to it. The corporation must show that the agent's fraud
was entirely self-interested and that the corporation did not benefit
in any way
(see 546-552 West 146th St., LLC v Arfa, 54 AD3d 543; Capital Wireless Corp. v Deloitte & Touche, 216
AD2d 663, 666). If the agent was acting solely for his or her own
benefit and to the detriment of the corporation, it cannot be said that
the agent was acting in the scope of his or her employment (see Center v Hampton Affilliates, 66 [*4]NY2d at 784).

This exception has been defined very narrowly in New York (see 546-552 West 146th St., LLC v Arfa, 54
AD3d 543). Under this narrow exception, management misconduct will not
be imputed to the corporation if the officer acted entirely in his own
interest and adversely to the interest of the corporation (see Center v Hampton Affiliates, 66
NY2d at 785). "The theory is that where an agent, though ostensibly
acting in the business of the principal, is really committing a fraud
for his own benefit, he is acting outside of the scope of his agency,
and it would therefore be most unjust to charge the principal with
knowledge of it" (Wight v Bank America Corp., 219 F3d 79, 87).
The adverse interest exception applies only when the agent has "totally
abandoned" the principal's interests and is acting entirely for his own
or another's purposes (Center v Hampton Affiliates, 66 NY2d at 785).

Credigy Receivables, Inc. v Agiwal, 2009 NY Slip Op 07790 (App. Div., 2nd, 2009)

The appeal from the intermediate order dated February 7, 2008, must
be dismissed because the right of direct appeal therefrom terminated
with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from that order are brought up for [*2]review and have been considered on appeal from the judgment (see CPLR 5501[a][1]).

The defendant's motion to dismiss the complaint based on lack of
personal jurisdiction was properly denied on the ground that the
objection of improper service of the summons and complaint was waived
by the defendant's failure to move to dismiss on that ground within 60
days of service of the answer (see CPLR 3211[e]).

In its motion for summary judgment, the plaintiff established
its entitlement to judgment as a matter of law against the defendant in
the principal sum of $55,682.32, and the defendant failed to raise a
triable issue of fact in response thereto (see Alvarez v Prospect Hosp., 68 NY2d 320).

Moran Enters., Inc. v Hurst, 2009 NY Slip Op 07807 (App. Div., 2nd, 2009)

The Supreme Court erred in dismissing the complaint pursuant to CPLR
The principle of res judicata bars relitigation of claims
where a judgment on the merits exists from a prior action between the
same parties involving the same subject matter (see Matter of Hunter,
4 NY3d 260, 269). Dismissal of the prior action insofar as asserted by
MEI was upheld by this Court on the ground that MEI failed to appear by
an attorney as required by CPLR 321(a) (see Moran v Hurst, 32
AD3d 909). Such was not a

Continue reading “CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321”

CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.

These are some of the more interesting CPLR R. 3211 decision's I've found in the past few weeks.  At least two revolve around CPLR § 308 ( Personal service upon a natural person). Another discussed CPLR § 306-b.  One decision discussed the preclusive effect of a CPLR R. 3211(a)(7) dismissal (in that case none), adding that it received the tolling benefit of CPLR § 205(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

Fitzgerald v Federal Signal Corp., 2009 NY Slip Op 05288 (App. Div., 2nd, 2009)

"Upon a motion to dismiss for failure to state a cause of action
under CPLR 3211(a)(7), the court must determine whether from the four
corners of the pleading factual allegations are discerned which taken
together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 563, quoting Morad v Morad, 27 AD3d 626, 627; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v MartÍnez, 84
NY2d 83, 87-88). "In determining such a motion, the court may freely
consider additional facts contained in affidavits submitted by the
plaintiff to remedy any defects in the complaint
" (Sheridan v Carter, 48 AD3d 444, 445; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375).

Viewing the allegations in the complaint as true, and according
the plaintiffs the benefit of every reasonable inference, the Supreme
Court properly determined that the plaintiffs failed to state a cause
of action to recover damages for strict products liability based on
Federal's alleged duty and failure to warn them, as the risk alleged is
"open and obvious" and "readily apparent as a matter of common sense"
(Liriano v Hobart Corp., 92 NY2d 232, 241-242; see Warlikowski v Burger King Corp., 9 AD3d 360, 362; Schiller v National Presto Indus., 225
AD2d 1053, 1054). "There is no duty to warn of an open and obvious
danger of which the product user is actually aware or should be aware
as a result of ordinary observation or as a matter of common sense"
(O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549,

Stubbolo v City of New York, 2009 NY Slip Op 04971 (App. Div., 1st, 2009)

The motion court erred in denying dismissal of plaintiffs' 42 USC §
1983 claim based on the theory of fabrication of evidence prior to the
initiation of the grand jury proceedings and prosecutions against
plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03.
The complaint fails to sufficiently allege such prosecutorial
misconduct and, as a result, the claim is barred by absolute
prosecutorial immunity
(see Buckley v Fitzsimmons, 509 US 259, 269-270 [1993]; Imbler v Pachtman, 424 US 409, 430-31 [1970]; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).

Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed [*2]plaintiffs'
remaining federal and state law claims as time-barred or for failure to
state a cause of action (CPLR 3211[a][1], [7]).

HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 2009 NY Slip Op 04964 (App. Div., 1st, 2009)

The court dismissed the legal malpractice complaint, pursuant to
CPLR 3211(a)(1), based on documentary evidence from which it concluded
that the state of the law at the time the advice was given was
unsettled and defendants therefore had not " failed to exercise the
ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so
unsettled at the time the advice was given as to bar as a matter of law
plaintiffs' claim that a reasonably skilled attorney would have advised
that the CDs were or might be entitled to common-law copyright
protection and would not have advised that the release of the CDs would
not result in any copyright liability. Although defendant maintains
that it did advise plaintiffs of the possibility of common-law
liability and did not advise plaintiffs that the release of the CDs
would not result in any copyright liability, we must accept the facts
alleged in the complaint as true and accord plaintiffs the benefit of
every possible
favorable inference
(Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner,
96 NY2d 300, 303 [2001]). The determination whether defendant exercised
the requisite level of skill and care must await expert testimony
(compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby & Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).

Continue reading “CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.”

CPLR § 205(a)

CPLR § 205 New action by plaintiff

As you may recall, CPLR §  205(a) was recently amended giving failure to prosecute dismissals the benefit of 205(a)'s tolling provision, provided certain conditions are satisfied.  This amendment was the subject of a recent NYLJ article by David Siegel.  I posted about about it here.  Justice Lehner addressed this issue in one of the first cases to meet the issue head on.

Stora v City of New York, 2009 NY Slip Op 29213 (Sup Ct, NY County, 2009)

Here I dismissed the initial action without making any finding of a
pattern of delay. However, I believe that a judge hearing the second
action can review the record of the initial action to determine such
issue when no adjudication thereon was made in that action. From an
examination of the papers submitted on these motions, it does not
appear that plaintiff's defaults were wilful or in bad faith and rise
to the level of conduct that warrants the type of sanction imposed in
Andrea. Hence, defendants' application that the court should find that
the dismissal in September 2008 was for lack of prosecution, and that
thus the action is time barred, is denied.

Critics of the Amendment have questioned why it was added to §
205 (a), rather than § 3216, which details the statutory means of
obtaining a dismissal for want of prosecution. See, Siegel "Amendment
Bars 'Neglect to Prosecute' Dismissal," NYLJ, Sept. 15, 2008, p. 4, c.
4; New York State Bar Association's Committee on Civil Practice Law and
Rules memorandum dated July 1, 2008, in opposition to the Amendment.
The reason would appear to be that by the inclusion of the word
"otherwise" in the Amendment, the legislature intended the requqisite
finding of delay be made not only in cases of dismissals under § 3216,
but also in all cases where want of prosecution is the basis for the
prior dismissal. Such situations would thus include dismissals i) for
failure to provide discovery, as in Andrea; ii) for failure to appear
for trial, as in Macaluso v. Statfeld, 295 AD2d 147 (1st Dept. 2002)
and Morris v. Start, 268 AD2d 787 (3rd Dept. 2000); and iii) under CPLR
3404, which specifically states that a failure to restore a case to the
calendar within a year after being marked "off" is a "neglect to
prosecute" [see, Pomerantz v. Cave, 10 AD2d 569 (1st Dept. 1960);
Siegel; New York Practice, 4 ed., § 376].

While it may in future cases be argued that by inserting the Amendment in

§ 205 (a) it was the intent of the legislature to limit the
requirement for a finding of a general pattern of delay to situations
where a plaintiff was seeking to obtain the benefit of the six month
extension, and not to invalidate all dismissals not containing the
finding, that is certainly not clear from the sponsoring memorandum
submitted in support of the bill (A750) containing the proposed
amendment to § 205 (a), where Assemblyman Keith Wright stated the


Establishes a requirement that when a dismissal is one for neglect to prosecute an [*4]action
the judge must set forth on the record the specific conduct
constituting the neglect. The conduct specified must demonstrate a
general pattern of delay in proceeding with the action before a neglect
to prosecute dismissal is warranted.


bill sets forth a resolution to a persistent problem within our courts
regarding dismissal for neglect to prosecute the action.

intent of CPLR § 205 (a) has been misconstrued allowing for many cases
to be dismissed on the basis of neglect to prosecute. The law is
presently unclear with respect to what specifically constitutes a
neglect to prosecute particularly where it falls outside Rule 3216.

Amending CPLR § 205 (a) to provide uniformity would reestablish the original legislative intent of this chapter.

An identical memorandum was submitted by Senator Dale Volker in support of the Senate bill (S2677).

In any event, it would seem that any defendant concerned about a
plaintiff obtaining the benefit of a § 205 (a) extension after a
dismissal on any grounds that could be deemed to be a neglect of
prosecution would be wise to request at the time of dismissal that the
court issue an adjudication on the issue of general delay.

While it has been suggested that the adoption of the Amendment
was an attempt to legislatively overrule the 2005 Court of Appeals
decision in Andrea, that would not appear to be the specific intention
of the Assembly sponsor as he had introduced a similar bill in each
session of the legislature since 1993. It is noted that,
notwithstanding the opposition of the aforesaid State Bar Association
Committee, the Amendment passed with nary a negative vote in either
chamber of the legislature.

Although judgments on default can have res judicata effect
[see, Lazides v. P & G Enterprises, 58 AD3d 607 (2nd Dept. 2009);
Allstate Insurance Company v. Williams, 29 AD3d 688 (2nd Dept. 2006);
Robbins v. Growney, 229 AD2d 356 (1st Dept. 1996)], as can an order of
preclusion [see, Strange v. Montefiore Hospital and Medical Center [59
NY2d 737, 739 (1983)], defendants have not raised that issue herein
(tr. pp. 12-13). In any event, it has been held that "[w]here a
plaintiff's noncompliance with a disclosure order does not result in a
dismissal with prejudice, or an order of preclusion or summary judgment
in favor of defendant so as to effectively close plaintiff's proof,
dismissal resulting from noncompliance is not a merits determination so
as to bar commencement of a second action" [Maitland v. Trojan Electric
& Machine Co., Inc., 65 NY2d 614, 615-616 (1985)]. See also,
Daluise v. Sottile, supra, at p. 802; Downtown Acupuncture P.C. v.
State Farm Mutual Automobile Ins. Co., 20 Misc 3d 137 (A), 2008 WL
2831979. (App. Term 2nd & 11th Districts).

In conclusion, since I have found that my dismissal of the
initial action cannot be said to have been based on a lack of
prosecution, the motions of defendants to dismiss are denied. This
decision constitutes the order of the court.

CPLR § 205(a)

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.