You are here: / / THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING...
,

THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS MARKED OFF THE CALENDAR BUT WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT).

The Second Department determined the tolling provision in CPLR 205 which allows an action which was dismissed (but not on the merits) to be started again within six months applies to Article 78 actions seeking review of an administrative ruling, here a ruling by the NYS Liquor Authority:

As the petitioner correctly contends, CPLR 205(a) applies not only to actions but also to special proceedings under CPLR article 78 … . 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 … .

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”… . 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 … . Matter of Lindenwood Cut Rate Liquors, Ltd. v New York State Liq. Auth., 2018 NY Slip Op 03680, Second Dept 5-23-18

​ADMINISTRATIVE LAW (CIVIL PROCEDURE, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE (ADMINISTRATIVE LAW, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))/CPLR 205 (ADMINISTRATIVE LAW, THE TOLLING PROVISION OF CPLR 205 APPLIES TO AN ARTICLE 78 PROCEEDING SEEKING REVIEW OF AN ADMINISTRATIVE RULING, THE PETITION, WHICH WAS NOT DISMISSED ON THE MERITS, CAN BE RE-FILED WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT))

You might also like
DEFENDANT MANUFACTURER DID NOT ELIMINATE QUESTIONS OF FACT WHETHER THE SNOW THROWER WAS DEFECTIVELY DESIGNED AND WHETHER WARNINGS WERE ADEQUATE (SECOND DEPT).
DEFENDANT, AT THE PLEA PROCEEDINGS, WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM WHICH COULD BE IMPOSED; GUILTY PLEA VACATED (SECOND DEPT).
BROKER NOT ENTITLED TO COMMISSION, MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.
THE UNDERWRITING GUIDELINES DID NOT SUPPORT THE UNDERWRITER’S CLAIM THAT THE LIFE INSURANCE POLICY WOULD NOT HAVE BEEN ISSUED IF THE COMPANY HAD BEEN AWARE OF PLAINTIFF’S DECEDENT’S HEART CONDITION; THEREFORE THE INSURANCE COMPANY DID NOT DEMONSTRATE, AS A MATTER OF LAW, THAT PLAINTIFF’S DECEDENT MADE A MATERIAL MISREPRESENTATION (SECOND DEPT).
THE DNA TEST RESULT GENERATED USING THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE WITHOUT FIRST HOLDING A FRYE HEARING (SECOND DEPT).
ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE MADE RULINGS ON CUSTODY AND MOTHER’S PETITION TO RELOCATE BEFORE COMPLETING THE HEARING (SECOND DEPT).
A TITLE HOLDER WHO DID NOT SIGN THE NOTE BUT DID SIGN THE MORTGAGE IS ENTITLED TO THE RPAPL 1304 NOTICE OF FORECLOSURE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF,... WHERE DEFENDANT PRESENTS EVIDENCE HE DID NOT RECEIVE NOTICE OF THE COURT CONFERENCES,...