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 the time allowed to perfect the Appeal.
Under Malay, the six month period afforded by CPLR 205(a) does not even begin to run until the prior action is terminated. The Defendants in Malay, not unexpectedly, raised the concern that plaintiffs would file frivolous appeals to extend their time to cure the defects of their pleadings. Judge Fahey, writing for the Court, found the concern to be overblown. He reasoned, "plaintiffs would not be encouraged to engage in such behavior for long because the dismissal for failure to perfect would foreclose any subsequent appeal of the same issues".
However, what if such a consequence is not a deterrent at all because the plaintiff never had a viable appeal to begin with as a matter of law? The plaintiff in Malay had a colorable appeal. Her original action alleged violation of her federal and state constitutional rights and asserted a common law negligence claim. The District Court dismissed many of her claims and granted defendants' motion for summary judgment on other claims. Plaintiff took an appeal as of right to the Court of Appeals for the Second Circuit. Prior to dismissal of her appeal, she filed an action in state court. Although ultimately she abandoned her appeal, she had a small chance of success. Will the Court of Appeals find differently if faced with an appeal that is frivolous on its face, such as a suit brought by someone without the capacity to sue?
It remains to be seen but for now, it would appear that plaintiffs have been provided with a way to circumvent the harsh but necessary consequences of failing to bring a proper action at the proper time and may simply file a Notice of Appeal, with no intention of perfection and wait for it be administratively dismissed.
Footnotes
1 Malay v City of Syracuse, 25 N.Y.3d 323, (2015)
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