In this case, the Appellate Division dismissed the plaintiff’s complaint because it was not timely under the CPLR 205(a) “savings clause,” which affords a party six months from dismissal to re-file and serve a complaint even if the statute of limitations expired during that period.
On our motion, the Supreme Court had dismissed plaintiff’s original complaint for lack of capacity, since the plaintiff had sued as a “Proposed Administrator.” Plaintiff did not oppose the motion, but did file a notice of appeal. Exactly six months later, and under the authority of CPLR 205(a), plaintiff filed a new complaint. However, plaintiff again filed as a “Proposed Administrator,” and did not serve the defendants within six months, as CPLR 205(a) requires. The Supreme Court denied our motion to dismiss that complaint for lack of capacity and as untimely under CPLR 205(a). On appeal, the Appellate Division reversed, agreeing with our arguments that dismissal was required because the plaintiff still lacked capacity to sue at the expiration of the CPLR 205(a) period, the plaintiff failed to serve the defendants within that period, and the notice of appeal from dismissal of the first action could not extend the six-month period, because the appeal was a nullity: no appeal can lie from a default judgment.
