Wilfred Rivera, appellant, v. Waterview Towers, Inc., respondent. (2026)

Argued—January 30, 2026

DECISION & ORDER

G/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated October 24, 2024.  The order granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint is denied.

In September 2013, the plaintiff commenced an action against the defendant to recover damages for personal injuries he allegedly sustained in a February 12, 2013 trip and fall accident in a building owned by the defendant (hereinafter the first action).  In an order dated February 25, 2022, the Supreme Court directed dismissal of the first action, in effect, pursuant to 22 NYCRR 202.27, upon the plaintiff's failure to proceed to trial (see Rivera v. Waterview Towers, Inc., 235 AD3d 921).

In April 2022, the plaintiff commenced this action to recover damages for the same personal injuries arising out of the same February 12, 2013 trip and fall accident.  The defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground, among others, that it was barred by the statute of limitations.  In opposition, the plaintiff contended, inter alia, that the action was timely pursuant to CPLR 205(a).  In an order dated October 24, 2024, the Supreme Court granted the motion, concluding that the action was time-barred.  The plaintiff appeals.

An action to recover damages for personal injuries is subject to a three-year statute of limitations (see id. § 214[5] ) and accrues at the time of injury (see id. § 203[a];  Snyder v. Town Insulation, 81 N.Y.2d 429, 432).  Here, the defendant established, prima facie, that this action was commenced more than three years after the alleged injuries occurred.

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 (Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 520;  see CPLR 205[a];  HSBC Bank USA, N.A. v. St. Hillaire, _ AD3d _, 2026 N.Y. Slip Op 00353).  Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

Contrary to the defendant's contention, the 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” (id.).  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) (id.;  see Crudele v. Price, 218 AD3d 536, 538;  Sokoloff v. Schor, 176 AD3d 120, 128;  Bank of N.Y. Mellon v. Slavin, 156 AD3d 1073, 1074).

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” (GMAC Mtge., LLC v. Guccione, 127 AD3d 1136, 1138;  see Farrell Forwarding Co., Inc. v Alison Transp., Inc., 119 AD3d 891, 892).  Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced.

The defendant's remaining contentions are either without merit or improperly raised for the first time on appeal.

Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court