theCPLRblog

205(a)

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.

 

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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 limitations.

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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 3211(a)(5). 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

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, 551).

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]).

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 following:

PURPOSE OR GENERAL IDEA OF BILL:

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.

JUSTIFICATION:

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

The 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. [*2]

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.

CPLR § 205(a) amendment & CPLR R. 3216

CPLR § 205 New action by plaintiff

CPLR R. 3216 Want of prosecution

Monday's New York Law Journal will have  David Siegel's (of "Siegel, New York Practice" fame) article, Amendment Bars 'Neglect to Prosecute' Dismissal.  In it he discusses a recent amendment to CPLR §  205(a) will have an effect on motions to dismiss pursuant to CPLR R. 3216.

Here is part of the article, you can read the rest in Monday's Law Journal or in the online edition today:

Chapter 156 of the Laws of 2008 was signed into law on July 7, 2008, took effect immediately, and is in effect now.

Most interesting is that it is not an amendment of CPLR 3216, the CPLR's explicit provision on the neglect to prosecute, but of CPLR 205(a), the statute that gives a plaintiff a new six-month period in which to commence a new action when a non-merits dismissal of an earlier one occurs and the original statute of limitations has already expired. The problem aimed at by the amendment is that the neglect to prosecute dismissal is an exception to CPLR 205(a), which does not offer its six months when want of prosecution is the reason for the prior dismissal.

The neglect to prosecute dismissal is not ordinarily on the merits and therefore doesn't give rise to a res judicata defense if the plaintiff brings a new action on the claim. The statute of limitations is and has almost always been the problem. If the statute has expired when the neglect to prosecute occurs, a new action is barred by time and CPLR 205(a) offers no lifeline.¹

The amendment adds to CPLR 205(a) the instruction that a court making a neglect to prosecute dismissal must:

set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.

Presumably a neglect to prosecute dismissal made without that showing - that explicit finding of "a general pattern of delay" - will no longer disqualify the case for the six-month period for the new action, which is sterling news for plaintiffs. Tentatively, anyway.

There are lessons here for all litigation participants: judges, plaintiffs and defendants, especially in view of the fact that there exist a variety of dismissals based on specific misconduct - failure to serve a complaint, answer a calendar call, pick a jury, submit to pretrial disclosure, etc. - that can also qualify as "neglect to prosecute" dismissals under CPLR 205(a) and thus not earn the six months for a new action.

There are a number of "neglect to prosecute" dismissals, in other words, that are not predicated on the "neglect to prosecute" statute, CPLR 3216. The "neglect to prosecute" reference in CPLR 205(a) is a galaxy of its own, in which CPLR 3216 is but one planet.

The lesson to judges now faced directly with a CPLR 3216 motion to dismiss is to grant it only when satisfied that the plaintiff has been guilty of "a general pattern of delay,",and only if the judge is prepared to "set forth on the record the specific conduct constituting the neglect." Dismissing without that record, even if denominating the dismissal as one for "neglect to prosecute" or using a like phrase, will not deny the plaintiff the cherished gift of the CPLR 205(a) six months.

A "general pattern of delay" is the sine qua non, with a written record detailing the plaintiff's "specific conduct" that justifies the "general pattern of delay" conclusion.

Apparently just one or two missteps or delays by a plaintiff won't do the job. There's got to be a "pattern" of dilatory conduct.

The article goes on to discuss ways for defendants to make sure their CPLR R. 3216 motions are effective in light of the "general pattern of delay" requirement as well as whether CPLR § 205(a) will have an impact on CPLR R. 3404 motions. Towards the end, Mr. Siegal has a very interesting discussion regarding the history of CPLR R. 3216.

Look for more on this article later.

All the bold is mine.