By Norina Melita
To the diligent litigator who thinks a mistake may cause the client the case, the litigator his or her job, or the firm its malpractice insurance, take heart in knowing that CPLR § 205, equitable tolling, and the courts’ long-standing policy of determination of actions on the merits may, in limited circumstances, provide a saving grace.
The biggest fear, worst-case scenario, and cautionary tale of all law school students is blowing the statute of limitation. In law school, our zealousness and eagerness prevent us from imagining a failure to calendar things, and we picture ourselves always minding the looming deadline, but in practice, things can happen quite differently. An action may be dismissed after having been commenced timely for a variety of reasons. As such, the attorney’s ability to re-commence might be limited by the expiration of the statute of limitations, which would now time-bar the action. In New York, there is a sliver of hope for the diligent litigator. New York Civil Procedure Law and Rules (CPLR) § 205 (a) permits re-commencement of the action that would otherwise be time barred, in certain circumstances, as long as (1) the new action is commenced within six months after the termination of the prior action; (2) the prior action had been commenced timely; and (3) the service upon the defendant is effected within the six months. If the prior action was dismissed by voluntary discontinuance, failure to obtain personal jurisdiction over the defendant, neglect to prosecute, or judgment on the merits, CPLR § 205 will not be able to save the action. Any other manner of termination will allow the action to survive by application of the savings statute.
So when is CPLR § 205 available? If the prior action was dismissed for failure to comply with a contractually imposed procedural condition precedent, CPLR § 205 may be available.[1] If the prior action was dismissed because the petitioner failed to appear before the court on the scheduled hearing date, CPLR § 205 may be available[2] If the prior action was dismissed due to a defect in the representative capacity of the person commencing the action, CPLR § 205 may apply.[3] However, when attempting to revive an action with the aid of CPLR § 205, particular attention must be paid to whether the previous action was within the court’s jurisdiction;[4] whether the same party that commenced the prior action is commencing the new action;[5] when the six-month period begins to run;[6] and interaction between CPLR § 205 and other statutes.[7]
For further relief of stressed-out litigators who think they’ve blown the statute of limitation, the six-month period of CPLR § 205 could be extended by the sparingly applied theory of equitable tolling. This rarely applied theory may be available to a plaintiff “as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his [or her] rights.”[8] This may occur if the plaintiff files timely but in the wrong forum, the defendant actively misleads plaintiff and creates the delay, or the plaintiff has been prevented from complying with the limitation period in some extraordinary way, particularly if the litigant can show that they have been pursuing their rights diligently, but some extraordinary circumstance stood in their way.[9]
[1] U.S. Bank v. DLJ Mortgage, 30 N.Y.3d 72 (2019).
[2] Lindenwood v. N.Y.S. Liquor Authority, 161 A.D.3d 1077 (N.Y. App. Div. 2018).
[3] See George v. Mt. Sinai Hosp., 47 N.Y.2d 170 (N.Y. 1979).
[4] See Tenenbaum v. Setton, 49 Misc. 3d 39 (Sup. Ct., App. Term, 2d Dept. 2015).
[5] Wells Fargo Bank v. Eitani, 148 A.D.3d 193 (N.Y. App. Div. 2017); but see ACE Securities v. DB Structured Products, 52 Misc. 3d 343 (Sup. Ct., N.Y. Co. 2016).
[6] Action is not terminated until all appeals as of right have been exhausted (Bank of N.Y. Mellon v. Slavin, 56 A.D.3d 1073 [3d Dept. 2017]).
[7] See Norex Petroleum v. Blavatnik, N.Y.S.3d 665 (2014) for intersection with CPLR § 202; Westchester Joint Water Works v. Assessor of Rye, 27 N.Y.3d 566 (2016) (where the Court of Appeals held that RPTL § 708 [3] superseded CPLR § 205 [a]).
[8] Guobadia v. Irowa, 2015 WL 2129640 (E.D.N.Y. 2015).
[9] O’Hara v. Bayliner, 89 N.Y.2d 636 (1997); Latoya v. Commissioner, 2019 WL 6609674 (N.D.N.Y. 2019); River Ridge v. Semkiw, 72 Misc. 3d 953 (Sup. Ct., Mont. Co. 2021).
Norina Melita is currently the Confidential Law Clerk to a Supreme Court Judge in Fonda, New York. Prior to that, she was the managing attorney and vice president of legal operations at a busy litigation firm in Albany, New York. Norina also teaches Business Law as an adjunct professor at the College of St. Rose. You may contact Norina norina.melita@yahoo.com.