CPLR 205(a), commonly referred to as New York’s “saving provision” or “saving statute,” permits a plaintiff to recommence an action within six months of its termination, provided that the original action was timely filed and the new action is based upon the same transaction or occurrence, thereby “saving” the action from being barred by the statute of limitations. Notably, however, this “saving” mechanism is unavailable if the prior action was terminated by way of voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, neglect to prosecute the action, or on the merits.
This provision was enacted as a part of the original CPLR in 1963, preceded by Section 405 of the former NY Civil Practice Act of 1920, with its remedial concept existing in New York Law since at least 1788 and since at least 1623 in English common law (see, Reliance Ins. Co. v. PolyVision Corp., 9 NY3d 52, 56 [2007], citing Gaines v. City of New York, 215 NY 533, 538-539 [1915]). CPLR 205(a) and its predecessors are equitable statutes, designed to ensure “a genuine bite at the apple” and protection from otherwise harsh consequences to claimants for errors pertaining neither to their willingness to timely prosecute nor the merits of their underlying claim (Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193, 200 [2d Dept., 2017]). There is strong historical recognition of the broad, liberal purpose of these statutes, with courts cautioning against narrow, erosive constructions (see, Gaines v. City of New York, 215 NY 533, 538-539, supra).
It is against this historical backdrop that CPLR 205(a) operates to “make timely” an otherwise untimely action – provided that it is commenced within six months of an action’s termination that is not based on any of the previously enumerated reasons [e.g., neglect to prosecute, on the merits, etc.]. While toiling in the vineyard of the law, counsel may naturally ponder: How many times can CPLR 205(a) “save” an action?
On June 4, 2025, this precise issue was brought before the Appellate Division, Second Department in Tumminia v. Staten Island University Hospital et al. (__ AD3d __ [2d Dept., June 4, 2025]), wherein the plaintiff’s complaints were thrice dismissed for the lack of capacity to sue, with the third dismissal stated as being “with prejudice.” Notably, the dismissals were the consequence of letters of administration not being issued for a decedent’s estate despite petition having been made prior to filing the first action.
Presiding Justice Hector D. LaSalle, writing for the unanimous panel, framed the matter as follows (id., at *1):
The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State appellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v. Ray, 22 F.4th 69 [2d Cir.]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice.
In so holding, the Court not only relied upon the “plain language” of the statute, but it further reasoned that, particularly in situations “where a plaintiff is unable to obtain letters of administration within six months through no fault of his or her own,” it would be inequitable for such actions to become time-barred (id., at *6). The Court’s interpretation of the statute is thus consistent with the equitable application of the savings provision in this State.
Furthermore, Presiding Justice LaSalle reasoned that the Court’s interpretation of the statute harmonized with the legislative intent undergirding CPLR 205(a), as evidenced by the different tack taken in enacting the Foreclosure Abuse Prevention Act (FAPA) in 2022. FAPA, which replaced CPLR 205(a) with CPLR 205-a in connection with, inter alia, foreclosure actions, expressly provides that plaintiffs shall not receive more than one six-month extension. As noted in Tumminia (supra), “[t]he fact that the Legislature included this language in CPLR 205–a but not in CPLR 205(a) is further evidence that it did not intend for a plaintiff to be limited to one six-month extension under CPLR 205(a)” (id., at *6).
Lastly, the Court emphasized that Tumminia was factually distinguishable from the Second Circuit’s determination in Ray because, whereas the prior action in Tumminia was dismissed for lack of capacity, the prior action in Ray was dismissed for a failure to state a cause of action in an insufficient pleading (see, Ray v. Ray, 22 F4th 69 [2d Cir. 2021]). As such, it would be “inequitable” for the plaintiff to be punished where he “had applied for letters of administration approximately two years prior to the dismissal of the prior action” and there was no indication that the inability to procure the necessary letters “was his own fault” (Tumminia, supra at *6).
The wise practitioner may note that this language regarding the absence of “fault” leaves open the door for a different conclusion under different circumstances. This suggests that, in accordance with the historical underpinning of CPLR 205(a), the Court’s paramount concern is doing equity. As such, future litigants should remain mindful that CPLR 205(a) is not to be viewed as providing carte blanche for an endless procession of pleadings.