This article appeared in the April 11, 2016 edition of The New York Law Journal
A plaintiff whose action has been dismissed for a "technical defect"1 can under certain circumstances bring a new action—based on the very same transaction or occurrence or series of transactions or occurrences that formed the basis for the prior action—within six months of the dismissal, even if the applicable statute of limitations would otherwise bar the new action.2 That is thanks to the tolling provision set forth in CPLR 205(a). And in Malay v. City of Syracuse, 25 N.Y.3d 323 (2015), the Court of Appeals held that CPLR 205(a)'s six-month tolling period begins to run when a nondiscretionary appeal is dismissed, not when the order appealed from is entered.
Dramatic events gave rise to Malay. In 2007, the owner of a building in Syracuse shot his wife and took relatives hostage. The police fired gas canisters into the building during the standoff that followed—including into the apartment of the plaintiff, who lived in the building. She got out safely, but she was never allowed to return.
The plaintiff alleged that her exposure to the gas and the loss of her personal property due to her apartment's contamination injured her. She brought an action in the U.S. District Court for the Northern District of New York in 2008, alleging violations of federal and state constitutional rights and common-law negligence claims. Through an initial order and a later Sept. 30, 2011 order on summary judgment, the District Court ultimately dismissed all of her claims except certain state law claims, over which it declined to exercise jurisdiction. The plaintiff moved for reconsideration, but the District Court denied it.
The plaintiff then appealed as of right to the U.S. Court of Appeals for the Second Circuit and appeared for a conference there in May 2012. On June 25, 2012, she also commenced an action in New York state court.
The next day, on June 26, 2012, the Second Circuit held that the plaintiff's appeal was in default due to her failure to file a brief and appendix within the deadline and ordered that the appeal would be dismissed, effective July 10, 2012, if she had not filed her brief and appendix by then. She did not file them. On Aug. 28, 2012, the Second Circuit issued a mandate dismissing the plaintiff's appeal, effective July 10, 2012.
Meanwhile, in state court, the defendants had moved to dismiss the action as untimely, arguing that the six-month tolling period set forth in CPLR 205(a) had already expired when the plaintiff commenced her action because she did that almost nine months after Sept. 30, 2011, the date of the District Court's order dismissing her claims. Plaintiff took the position that her federal action had not terminated until July 10, 2012, the effective date of the Second Circuit's dismissal of her appeal in the federal action; under this interpretation, she had actually commenced her state action before termination of her federal action.
The state Supreme Court agreed with the defendants and granted their motion to dismiss. The Appellate Division affirmed, and the Court of Appeals granted the plaintiff leave to appeal. On that appeal, the Court of Appeals reversed: Where an appeal is taken as of right, it held, the original action terminates for CPLR 205(a) purposes whenever that appeal is "exhausted," which may occur upon (1) determination on the merits or (2) dismissal of the appeal—even where dismissal is based on abandonment of the appeal.
In so holding, the Court of Appeals considered both the purpose of CPLR 205 and judicial economy. The point of CPLR 205 was to "allow plaintiffs to avoid the harsh consequences of the statute of limitations and have their claims determined on the merits" in situations where defendants had been put on notice of the claims against them through a prior, timely commenced action; the Court of Appeals noted that its holding was consistent with that purpose. And there was no reasonable basis for a concern that the court's decision would motivate plaintiffs to unduly delay deciding whether to pursue their appeals or commence new actions: Attorneys routinely file notices of appeal, and plaintiffs generally want to obtain a determination on the merits quickly.
The Court of Appeals also rejected as "overblown" defendants' concern that its interpretation of CPLR 205(a) would encourage the frivolous taking of appeals that plaintiffs do not really intend to perfect. Such behavior would necessarily be short-lived because dismissal of a nondiscretionary appeal for failure to perfect generally would foreclose later appeals on the same issues, the court noted, and it presumed that an intermediate appellate court would not vacate an appeal's dismissal absent a compelling reason.
Finally, the Court of Appeals rejected the defendants' contention that plaintiffs who might forgo pursuing their appeals ought to commence their new actions while those appeals are pending. The court pointed out that, in such a situation, the new action would be subject to dismissal under CPLR 3211(a)(4)'s provision regarding other pending actions between the same parties for the same cause of action. In addition, this would be wasteful given that the appeal itself might determine the parties' rights and prevent further litigation.
While Malay provides important guidance to plaintiffs facing appeal dismissals, it leaves some questions unanswered. For example, if a plaintiff files an appeal and then decides not to perfect it, can that plaintiff count on the fact that the CPLR 205(a) tolling period will run from the date of dismissal? Not necessarily. In order to take advantage of CPLR 205(a) in the first place, a plaintiff3 needs to satisfy several requirements:
• The termination of the prior action cannot have been due to voluntary discontinuance, lack of personal jurisdiction over the defendant, dismissal for neglect to prosecute,4 or a final judgment on the merits.5
• The prior action itself had to have been timely commenced. If the prior action was brought after the expiration of the applicable statute of limitations period, CPLR 205(a) won't save it.6
• The prior action must have been filed in state or federal court in New York.7
• Service upon the defendant must be effected within the six-month period following termination of the prior action.8
So, where a plaintiff chooses to abandon an appeal, could that be deemed a "voluntary discontinuance" or "neglect to prosecute" such that CPLR 205(a) does not apply? While the Court of Appeals in Malay applied CPLR 205(a) in the context of a post-abandonment dismissal, it also expressly noted that this issue had not been preserved for its review and that it therefore expressed no opinion.
And what about the case law holding that a plaintiff cannot invoke CPLR 205(a) where the new action was commenced before the prior action was terminated?9 In Malay, the plaintiff commenced her new state court action before dismissal of the appeal in her original action and thus before termination of the original action, under the Court of Appeals' interpretation of CPLR 205(a). While Malay (decided in May 2015) does not explicitly address this question, a Second Department case decided in September 2015 seems to rely on Malay in dicta as support for the argument that CPLR 205(a) can apply even when the new action is commenced before the earlier one is dismissed. See Robles v. Brooklyn Queens Nursing Home, 131 A.D.3d 1032, 1032-33 (2d Dep't 2015) (holding that appellants improperly raised for the first time on appeal the argument that plaintiff was not entitled to a CPLR 205(a) extension "because the instant action was commenced prior to the dismissal of the two earlier actions" and noting that "[h]ad this argument been raised in the Supreme Court, the plaintiff would have been entitled to the benefit of the six-month extension saving provision of CPLR 205(a) and would have been granted an opportunity to commence a new action"). Without citing Malay, however, the Fourth Department in November 2015 held differently. See Dunlop v. Saint Leo Great R.C. Church, 133 A.D.3d 1288, 1288-89 (4th Dep't 2015) ("We conclude that CPLR 205(a) is inapplicable to the present action against the Diocese inasmuch as the present action was commenced before the prior action against the Diocese was terminated.").
1. Marrero v. Crystal Nails, 114 A.D.3d 101, 109 (2d Dep't 2013) (internal quotation marks omitted).
2. See id. at 103; New York Civil Practice Law and Rules (CPLR) 205(a). "The six-month period in CPLR 205(a) is not a limitations period but a tolling provision, which has no application where … the statute of limitations has not expired at the time the second action is commenced." Bonilla v. Tutor Perini, 134 A.D.3d 869, 870 (2d Dep't 2015).
3. If the plaintiff dies and the cause of action survives, the plaintiff's executor or administrator may invoke CPLR 205(a) where applicable.
4. "Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall 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." CPLR 205(a).
5. See id.
6. See CPLR 205(a); Guzy v. New York City, 129 A.D.3d 614, 615 (1st Dep't 2015); Bradley v. St. Clare's Hosp., 232 A.D.2d 814, 815 (3d Dep't 1996).
7. See Guzy, 129 A.D. at 615; Midwest Goldbuyers v. Brink's Global Svcs. USA, 120 A.D.3d 1150 (1st Dep't 2014) (citing Lehman Bros. v. Hughes Hubbard & Reed, 245 A.D.2d 203 (1st Dep't), aff'd, 92 N.Y.2d 1014 (1998)).
8. See CPLR 205(a). In addition, the plaintiff must satisfy the 120-day requirement set forth in CPLR 306-b. See Joseph Marino, "Effect of termination of action," 1PT1 West's McKinney's Forms Civil Practice Law and Rules §1.57 (March 2016).
9. See, e.g., Dunlop v. Saint Leo Great R.C. Church, 133 A.D.3d 1288, 1288-89, (4th Dep't 2015); Guzy v. New York City, 43 Misc. 3d 1235(A), 997 N.Y.S.2d 98 (Sup. Ct., N.Y. Cty. 2014), aff'd on other grounds, 129 A.D.3d 614, 12 N.Y.S.3d 71 (1st Dep't 2015). See also Marino, 1PT1 West's McKinney's Forms Civil Practice Law and Rules §1.57.
Reprinted with permission from the “ISSUE DATE” edition of the “PUBLICATION”© 2016 ALM Media Properties, LLC. All rights reserved.