You are here: / / PLAINTIFF, ON THE DAY OF TRIAL, REQUESTED AND WAS GRANTED A DISCONTINUANCE...

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.

 

You might also like
Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous
EVEN THOUGH THE BREACH OF CONTRACT ACTION WAS TIME-BARRED, THE EXISTENCE OF A VALID CONTRACT PRECLUDED AN ACTION IN QUANTUM MERUIT OR QUASI CONTRACT (SECOND DEPT).
NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).
Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right
PLAINTIFFS ENTITLED TO DAMAGES FOR REDUCED PROPERTY VALUE, PUNITIVE DAMAGES, AND INJUNCTIVE RELIEF IN THIS TRESPASS BY ENCROACHMENT ACTION, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT).
PLAINTIFF WAS ENTITLED TO A SECOND EXTENSION OF TIME TO SERVE THE SUMMONS AND COMPLAINT IN THE INTEREST OF JUSTICE; DEFENDANT WAS ESTOPPED FROM CLAIMING HE RESIDED AT AN ADDRESS DIFFERENT FROM THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (SECOND DEPT).
THE TRIAL JUDGE DID NOT MEANINGFULLY RESPOND TO A NOTE FROM THE JURY; RE-READING THE ORIGINAL INSTRUCTIONS WAS NOT SUFFICIENT; CONVICTION REVERSED, NEW TRIAL ORDERED (SECOND DEPT).
A COUNTY MAY BE LIABLE FOR NEGLIGENT SUPERVSION OF A VISIT BETWEEN MOTHER AND CHILD BY A COUNTY SOCIAL SERVICES CASEWORKER AT A PUBLIC PARK; HERE THE CHILD FELL WALKING UP A SLIDE; THE CASEWORKER DID NOT OBSERVE THE ACCIDENT BUT MOTHER WAS NEXT TO THE SLIDE AT THE TIME (SECOND DEPT).