April 16, 2021

Tolling the running of the statute of limitations to permit the reinstatement of an action

In this decision the Appellate Division addressed the application of the statute of limitations with respect to certain proceedings encountered in the course of a CPLR Article 78.

Typically the statute of limitations for filing a timely Article 78 petition is four months from the time that the determination to be reviewed becomes final. CPLR 205(a), however, provides, in pertinent part, that [i]f an action is timely commenced and is terminated in any other manner than by ... a dismissal of the complaint for neglect to prosecute the action, ... the plaintiff may commence a new action upon the same transaction or occurrence ... within six months after the termination ....

In contrast, the CPLR provides that in the event a dismissal is one for neglect to prosecute the action, "the judge shall 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."

Further, explained the Appellate Division, "CPLR 205(a) is a tolling provision, which serves the salutary purpose of preventing a Statute of Limitations from barring recovery where the action, at first timely commenced, had been dismissed due to a technical defect which can be remedied in a new action". It is "designed to insure to the diligent suitor the right to a hearing in court until he or she reaches a judgment on the merits,"citing Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193.

Thus, said the court, the "'neglect to prosecute' exception in CPLR 205(a) applies not only where the dismissal of the prior action is for '[w]ant of prosecution' pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal."

Accordingly, the court in this proceeding opined that "the tolling provision of CPLR 205(a) is inapplicable where, as here, over the course of nearly 14 months, a litigant fails to timely perfect a proceeding and fails to make any effort to obtain an extension of time to perfect, citing Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d at 521.

Click Here to access the full text of the Appellate Divisions decision.

 

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