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THE SIX-MONTH GRACE PERIOD FOR FILING A NEW ACTION AFTER DISMISSAL (CPLR 205 (A)) DOES NOT APPLY IF THE UNDERLYING STATUTE OF LIMITATIONS FOR THE ACTION HAS NOT RUN; PLAINTIFF WAS FREE TO COMMENCE ANOTHER ACTION AFTER DISMISSAL ANYTIME WITHIN THE STATUTE-OF-LIMITATIONS PERIOD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint should not have dismissed because the action wasn’t recommenced within six months of dismissal (CLPR 205 (a)) because the statute of limitations on the underlying cause of action had not run. The six months grace period in CPLR 205 (a) only applies when the statute has run:

… CPLR 205(a) does not apply because “[w]here, as here, the statutory time limit has not expired . . . [CPLR 205(a)] cannot be applied in such a way as to shorten the period otherwise available to the plaintiff” … . The alleged slip and fall took place on August 24, 2021, and plaintiff filed the prior action on April 5, 2022, which was then dismissed by order entered on or about December 7, 2023. Plaintiff then refiled the instant complaint on August 21, 2024, within the three-year statute of limitations for his personal injury claim.

Nor is the refiled complaint barred by the doctrine of res judicata because the order dismissing plaintiff’s prior action was not on the merits … . Defendants moved to dismiss the prior action for failure to respond to discovery demands. Plaintiff did not oppose the motion, which was granted “without opposition,” and with no indication that the dismissal was on the merits or with prejudice. Supreme Court was without authority to revise the prior order by adding the words “with prejudice” because that revision substantively changes the prior order … . … [P]laintiff was not required to contest the dismissal of the prior action before commencing this action … . Hermina v 2050 Valentine Ave., LLC, 2026 NY Slip Op 00316, First Dept 1-27-26

Practice Point: The six-month grace period for filing a new action after dismissal (CPLR 205 (a)) only applies if the statute of limitations has run.

 

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