On October 4, 2017, the Second Department issued a decision in EB Brands Holdings, Inc. v. McGladrey, LLP, 2017 NY Slip Op. 06923, holding that CPLR 305’s extension of the statute of limitations does not apply to actions that are voluntarily discontinued.
In EB Brands Holdings, “the plaintiff brought an action against the defendant in the Supreme Court, New York County . . . asserting similar contentions” as it brought in a later-filed action in Supreme Court, Westchester County. In 2014, “the New York County action granted the defendant’s motion for summary judgment dismissing that complaint, without prejudice, on the ground that the complaint failed to state a cause of action. The court granted the plaintiff leave to replead in that action. . . . [R]ather than amending its complaint in the New York County action, on September 8, 2014, the plaintiff commenced this action in the Supreme Court, Westchester County. In a judgment entered January 26, 2015, the Supreme Court, New York County, dismissed the New York County action pursuant to the plaintiff’s voluntary discontinuance of that action without prejudice.”
The defendant moved to dismiss the Westchester County action as time-barred. The trial court granted the motion and the Second Department affirmed, explaining: “The Supreme Court properly dismissed this action as time-barred. The plaintiff’s contention that the statute of limitations was extended pursuant to CPLR 205(a) is without merit, as the time extension provisions of CPLR 205(a) are inapplicable when, as here, a prior, timely commenced action was terminated by voluntary discontinuance.” (Internal citations omitted) (emphasis added).