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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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