Time Marches On, Or Does It?

If an action is brought within the Statute of Limitations but is terminated in a manner that is not on the merits, New York Civil Procedure and Rules, "CPLR", 205(a) allows a plaintiff six months amend or re-file the action despite the expiration of the Statute of Appeals.

Recently, the Court of Appeals defined "termination" as it is used in the statute. In Malay v City of Syracuse¹, held, when an appeal is taken as of right, the prior action terminates for purposes of CPLR 205(a) when the nondiscretionary appeal is truly exhausted, either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned. Unfortunately, this means that a plaintiff who timely files Notice of Appeal, has, in addition to the six month time period afforded by CPLR 205(a) to cure the defect of the original Complaint, but also the time it takes the Appellate Division to dismiss an appeal for failure to perfect, which may, in fact, be longer that