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PLAINTIFF, ON THE DAY OF TRIAL, REQUESTED AND WAS GRANTED A DISCONTINUANCE WITHOUT PREJUDICE; PLAINTIFF COULD NOT TAKE ADVANTAGE OF THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS AFFORDED BY CPLR 205(A) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discontinuance of the action without prejudice, which plaintiff requested on the day of trial, did not entitle plaintiff to the six-month extension of the statute of limitations afforded by CPLR 205(a):

CPLR 205(a) “extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences” … . The statute “provides a six-month grace period” where the previous action has been dismissed 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'” … .

In this case, CPLR 205(a) was not available to extend the limitations period beyond the termination of the 2001 action, since that action was terminated by means of a voluntary discontinuance. The plaintiff affirmatively requested the discontinuance, and it was granted at his behest and over his adversary’s objection. An action may be voluntarily discontinued either by a stipulation or notice, pursuant to CPLR 3217(a), or by a court order, pursuant to CPLR 3217(b). Contrary to the plaintiff’s contention, a discontinuance sought by a plaintiff and effectuated by a court order under CPLR 3217(b) is no less voluntary within the meaning of CPLR 205(a) than a discontinuance effectuated by a stipulation or notice under CPLR 3217(a) … . Islam v 495 McDonald Ave., LLC, 2023 NY Slip Op 02501, Second Dept 5-10-23

Practice Point: A discontinuance without prejudiced granted to plaintiff over objection is a voluntary discontinuance to which the six-month extension of the statute of limitations afforded by CPLR 205(a) does not apply.

 

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