THERE IS NO RESTRICTION ON THE NUMBER OF TIMES A PLAINTIFF MAY TAKE ADVANTANGE OF THE SIX-MONTH EXTENSION TO FILE A NEW ACTION (CPLR 205(A)) WHERE THE COMPLAINT IS DISSMISSED BECAUSE PLAINTIFF HAS NOT YET OBTAINED LETTERS OF ADMINISTRATION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined that the dismissal of a complaint on behalf of a decedent because plaintiff has not yet obtained letters of administration is not on the merits. Therefore a plaintiff can take advantage of the six-month extension to file another action (CPLR 205(a)) every time the complaint is dismissed on that ground:
CPLR 205(a) provides that, “[i]f 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 . . . may commence a new action upon the same transaction or occurrence . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.” “Dismissal of an action for lack of capacity to sue is not a dismissal on the merits and, therefore, does not preclude the applicability of the six-month savings period under CPLR 205(a)” … . Where a complaint is dismissed pursuant to CPLR 3211(a)(3) for lack of capacity to sue because the plaintiff has not yet obtained letters to administer the decedent’s estate, “there is no restriction on the number of times that a plaintiff may qualify for a six-month statutory grace period” under CPLR 205(a) … .
Here, the Supreme Court directed dismissal of the complaint pursuant to CPLR 3211(a)(3) for lack of capacity to sue because the plaintiff had not yet obtained letters to administer the decedent’s estate. Under these circumstances, there is no restriction on the number of times that the plaintiff may qualify for a six-month statutory grace period under CPLR 205(a) … . Greene v Five Towns Premier Rehabilitation & Nursing Ctr., 2026 NY Slip Op 05286, Second Dept 9-16-26
Practice Point: Where a complaint is dismissed because plaintiff has not yet obtained letters of administration there is no restriction on the number of times plaintiff can take advantage of the six-month extension to file a new action pursuant to CPLR 205(a).