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CPLR 205 (a)…cont

Section 205 (a) provides that: “If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new injury action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

As has been recognized, “The restorative provisions of CPLR 205 (a) reflect the idea that a diligent litigant who commenced a timely action but who failed on some generally technical ground, deserves an adjudication on the merits”. A reading of section 205 (a) makes plain that there are six requirements that must be satisfied by a plaintiff seeking resort to its restorative effects (collectively hereinafter the section 205 [a] elements). These are: (1) that the prior action was timely commenced; (2) that the prior action was terminated other than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action or a final judgment upon the merits; (3) that a new action was commenced within six months from the termination of the prior action; (4) that the new action and the prior action are based upon the same transaction or occurrence or series of transactions or occurrences; (5) that the new action would have been timely commenced at the time of commencement of the prior action; and (6) that service upon the defendant in the new action is effected within six months from the termination of the prior personal injury action.

In this case, the parties are in full agreement as to only two of those requirements, i.e., that the federal action and this action are based upon the same factual allegations and legal claims and that this new action was commenced within six months from the termination of the prior action. Thus, the court must analyze the facts involved at bar to determine whether plaintiffs have satisfied the other four elements of the section 205 (a) showing. As will be apparent, that analysis leads along separate paths for the non-answering and the answering federal defendants, albeit to a significant extent, it leads to the same terminus.

The first of the section 205 (a) elements to be addressed is the manner in which the federal action was terminated. Here, the termination procedure differed for the non-answering and answering federal defendants.

Generally, section 205 (a) “is not applicable” to a case where “the plaintiff’s similar and timely-commenced federal action was terminated by voluntary discontinuance”. Because not all discontinuances of federal actions are treated the same under section 205 (a), “it is necessary to ascertain not only whether a prior `action’ was timely commenced, but also whether the manner in which the prior action was `terminated’ rendered the plaintiff ineligible for the six-month extension under the terms of that statute”. Rule 41 of the Federal Rules of Civil Procedure governs dismissals of actions. In particular, subdivision (a) (1) and (2) of that rule addresses the situations of dismissal without and with an order of the court.

To the extent relevant, rule 41 (a) (2) provides that: “Except as provided in [rule 41(a) (1)], an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.” A medical plaintiff relying upon this rule does not have an “absolute right” to that relief, but rather, “Dismissal under Rule 41 (a)(2) is within the sound discretion of the court”.

Rule 41 (a) (2) has been analogized to CPLR 3217 (b), which authorizes a discontinuance upon court order of an action commenced in this state. Based upon the similarity of the two statutes, and because “CPLR 3217 (b) has been interpreted as affording plaintiffs an opportunity to take advantage of CPLR 205 (a), whereas a discontinuance without court order pursuant to CPLR 3217 (a) does not”, a plaintiff is not denied the “remedial,” “ameliorative,” “tolling,” “extending” and “saving” effects of section 205 (a) where his prior federal lawsuit is terminated pursuant to a rule 41 (a) (2) dismissal order.

To Be Cont…

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