CPLR Case Of The Week #4

 Recommencing An Action Under CPLR 205(a) Or 205-a: When Does The Six Months Begin?

 CPLR 205(a),[i] known as the “savings clause,” provides:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall 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.

For those finding themselves in the position of seeking recommencement of an action pursuant to CPLR 205(a) or 205-a, calculating the six-month period within which to recommencement is permitted is critical.

Those faced with this scenario (recognizing attorneys are generally not good at math) would be wise to review Justice Mark Dillon’s well-reasoned decision in HSBC Bank USA, N.A. v Hillaire, ___AD3d___, 2026 NY Slip Op 00353 (2026) where he highlighted the dilemma facing attorneys seeking recommencement:

Under certain circumstances, both statutes [CPLR 205(a) and CPLR 205-a] permit the plaintiff a six-month window to recommence an action that otherwise would be untimely, measured from the “termination” of a prior action. Is the termination of the prior action the date an order of dismissal is executed by the court, the date the order of dismissal is entered with the clerk, or the date that the order of dismissal is served upon other parties with notice of entry? Is the termination of the prior action delayed 30 days for the potential filing of a notice of appeal pursuant to CPLR 5513(a) or a motion for leave to reargue pursuant to CPLR 2221(d), and further delayed by the appellate process when an actual appeal is undertaken, or is there no termination of the prior action until a final judgment is entered or served with notice of entry?

Having posed this terrifying series of questions, Justice Dillon does not long keep us in suspense, opening the decision with the Court holding: “We conclude, for reasons stated below, that when no appeal is taken by a party from an order of dismissal, the six-month period for recommencing an action under CPLR 205-a, and by extension under CPLR 205(a), begins to run once 30 days have elapsed following service of the order of dismissal with notice of entry.”

Hillaire arose from a mortgage foreclosure action filed in 2013. By Order dated March 21, 2022, the Supreme Court dismissed the action for the plaintiff’s failure to properly comply with a condition precedent, that being the separate envelope mailing requirement of RPAPL 1304(2).[ii]

Following the March 2022 dismissal, plaintiff did not appeal the decision, and re-commenced against defendants on September 9, 2022. Thereafter, defendants filed a motion for summary judgment dismissing the complaint, on the grounds that “even with a six-month grace period that was available under CPLR 205-a, the entry of the dismissal order on March 29, 2022, plus six months required this action to have been commenced and service of process to have been completed no later than September 29, 2022, but service was not completed until approximately three weeks later, on October 20, 2022.”

Plaintiff opposed the motion asserting:

[T]he provisions of FAPA, including CPLR 205-a, did not apply to this action as FAPA was enacted after this action’s commencement and that a retroactive application of CPLR 205-a would be an unconstitutional violation of the Due Process, Takings, and Contract Clauses of the United States Constitution.[iii] The plaintiff further argued, among other things, that under the incumbent (sic) version of CPLR 205(a), this action needed merely to be “commenced” within six months of the dismissal of the 2013 action. Since the commencement date of this action was September 9, 2022, the plaintiff maintained that this action was timely.

The Supreme Court determined the motion as follows:

By order dated October 23, 2023, the Supreme Court, inter alia, granted those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against them and on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. The court determined that CPLR 205-a applied to this action and that the six-month grace period under the statute was not satisfied as measured from the termination of the 2013 action. The court further held that since the plaintiff’s causes of action were time-barred, the defendants were entitled to judgment as a matter of law on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

Plaintiff appealed the Supreme Court ruling and the Second Department reversed the defendants’ motion for summary judgment dismissing the complaint and the counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

The Court noted:

Here, the defendants demonstrated, prima facie, that the mortgage debt was accelerated and that the six-year statute of limitations began to run on July 12, 2013, when the plaintiff commenced the 2013 action and elected to call due the entire amount secured by the mortgage (citation omitted). The defendants further established, prima facie, that since the plaintiff did not commence this action until September 9, 2022, more than six years later, this action was time-barred (citations omitted). Thus, the burden shifted to the plaintiff to raise an issue of fact as to the timeliness of the action.

Dispensing with plaintiff’s arguments about the retroactive application of CPLR 205-a, citing to Court of Appeals decisions rejecting similar challenges, turned to the time requirements under CPLR 205-a:

Both CPLR 205(a) and 205-a measure the six-month grace period from the termination of the prior action. Both statutes require that their statutory grace periods apply only if the new action would have been timely at the time that the prior action was commenced. But CPLR 205(a) and 205-a diverge in four crucial respects as to the exceptions, scope, and acts that need to be accomplished within their respective six-month grace periods in order for their provisions to be properly applied.

The Court highlighted the following differences:

(i) CPLR 205-a expands the concept of a “neglect to prosecute” a prior action, which, when applicable, precludes a plaintiff from commencing a new action;

(ii) “section 205-a provides, in subdivision (a)(2), that a plaintiff in a mortgage foreclosure action is entitled to only one qualifying six-month grace period. For other actions not involving mortgage foreclosure and that instead are governed by CPLR 205(a), there is no restriction on the number of times that a plaintiff may qualify for a six-month statutory grace period;”

(iii) “under section CPLR 205-a, a successor in interest or an assignee of the original plaintiff may not commence a new action unless it pleads and proves that such successor or assignee is acting on behalf of the original plaintiff;” and

(iv) “acts that must be accomplished within each statute’s respective six-month grace period.”

The Court noted that the fourth difference above was central to the appeal.

Whereas CPLR 205(a) requires that service of process for a recommenced action merely be “effected” upon defendants within six months from the termination of the prior action (see Ellis v Bushwick Ctr. for Rehabilitation & Nursing, 240 AD3d 746, 749), CPLR 205-a requires that service of process be “completed” within that same time period (compare CPLR 205[a], with CPLR 205-a; see Deutsche Bank Natl. Trust Co. v Heitner, 226 AD3d at 968-969). The language of CPLR 205-a places more time pressure upon plaintiffs to successfully recommence actions, as the additional time for completing service of process, rather than merely effecting service of process, upon defendants eats into the operative six-month statutory period.

***

Thus, plaintiffs seeking to recommence mortgage foreclosure actions under CPLR 205-a must necessarily budget more time for both effecting and completing service of process than may be required when CPLR 205(a) is applicable.

Looking at another critical issue in this case, and for understanding the time requirements of both CPLR 205(a) and 205-a, the Court then discussed what ”termination” means under the statute.

Both CPLR 205-a and 205(a) contain identical language that the respective six-month grace periods applicable thereunder be measured from the termination of the prior action. A central question to this appeal is the meaning of the term “termination.” Different interpretations affect the calculation of when the six-month grace periods commence and then expire, which, in turn, affects which actions are timely or untimely. This is an action squarely affected by conflicting interpretations.

The language of a statute is the best indicator of its legislative intent (citations omitted). Unfortunately, the statutory language at issue herein contains no definition of the term “termination.” The CPLR’s general definitions, set forth in CPLR 105, likewise do not include any definition of an action’s termination. Legislative history may be examined in aiding the construction of the meaning of words used in a statute (citations omitted). But in this instance, the bill jackets for both CPLR 205-a and 205(a) shed no light on what the Legislature specifically intended by the word “termination.” Failing all of that, Black’s Law Dictionary defines termination in simple terms as “[t]he act of ending something.”

Notably, while CPLR 205-a and 205(a) each provide for a six-month grace period for the recommencement of a new action measured from the termination of a prior action, the statutes do not state that the six-month grace period runs from the prior action’s “dismissal,” or from an order’s “entry,” or from the “service” of an order of dismissal with notice of entry, or from the entry or service of a “judgment.” A termination and a dismissal are not necessarily the same thing. Actions may have an order directing dismissal issued or entered, but the action is not terminated at that point as there are further proceedings that may be contemplated by one or more of the parties (citation and parenthetical omitted). Termination of an action in which an order directing dismissal has been issued or entered may be delayed by a timely motion for leave to reargue, a prejudgment motion for leave to renew, an unperfected appeal which is then dismissed, or an appeal that is perfected for an ultimate appellate determination, which may or may not bring the action to repose.

In discussing CPLR 205(a), the Court of Appeals held that an action is not terminated until appeals as of right are exhausted.

Emphasizing the need for clarity by the Court, Justice Dillon next discusses the differing interpretations of “termination” previously offered by the Court.

This Court, however, has rendered some decisions with contrary computational analyses, where the six-month grace period was measured from the entry of a trial court’s order of dismissal without an additional 30 days for the potential filing of a notice of appeal pursuant to CPLR 5513(a) (citations omitted). At least one decision from this Department used the date of an order of dismissal without specific regard to its entry date or to its service with notice of entry (citation omitted). In Pi Ju Tang v St. Francis Hosp. (citation omitted), where the prior action was a federal action, this Court rejected the contention that the six-month period should be calculated from the date of service of the judgment dismissing the federal action with notice of entry, and held instead that the six-month period began to run when the federal court dismissed the first action, without specifying when exactly that occurred. Cases from the Appellate Division, First, Third, and Fourth Departments, have measured the six-month grace period pursuant to CPLR 205(a) as running from either the date of the dismissal itself (citation omitted) or the entry date of an order of dismissal (citations omitted) without imposing any waiting period for service of the order of dismissal with notice of entry or for the potential filing of a motion for leave to reargue, a motion for leave to renew, or an appeal. In other words, appellate cases throughout the State, and within our own judicial department, are not uniform. The trial bench and the practicing bar are entitled to judicial clarity on this issue.

The Second Department concluded:

[T]he Legislature was looking for a firm date of an action’s conclusion, which logically takes into account proceedings that may be undertaken beyond the order of dismissal, its entry, and its service with notice of entry. CPLR 5513(a) and 2221(d) provide 30 additional days from the date of service of an order with notice of entry. Once that further date is reached and no notice of appeal or notice of motion for leave to reargue is filed, the six-month grace period starts running to recommence a qualifying action under CPLR 205-a or CPLR 205(a). The following cases—Collins, Delzotti, Navarro, Stein, Ross, Pi Ju Tang, and Extebank—therefore should no longer be followed in this judicial department to the extent that they measure the statutory six-month period from the date of an order of dismissal, or from the date of its entry with the clerk, or from 30 days after its entry (citations omitted).

In this appeal, the dismissal order, directing dismissal of the 2013 action, was e-filed and served with notice of entry on March 29, 2022. Contrary to the defendants’ contention, for the purposes of CPLR 205-a, the 2013 action terminated when the plaintiff’s right to appeal expired 30 days later, on April 28, 2022 (citations omitted). There was then a six-month grace period in which the plaintiff was permitted to commence a new action and complete service, ending on October 28, 2022. Insofar as this action was commenced on September 9, 2022, and the defendants concede that the plaintiff completed service upon them on October 20, 2022, less than six months from the termination of the 2013 action, this action was timely commenced.

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them (citations omitted).[iv]

Decision Date: January 28, 2026

Practical Practice Point:

The takeaway from this case is obvious: “the six-month period for recommencing an action under CPLR 205-a, and by extension under CPLR 205(a), begins to run once 30 days have elapsed following service of the order of dismissal with notice of entry.”

In the Second Department, if your case has been dismissed under CPLR 205(a) or 205-a, now there is now a clear answer as to when you must recommence your action when no appeal has been taken.

As for the First, Third or Fourth Departments, as the decision notes, “Cases from the Appellate Division, First, Third, and Fourth Departments, have measured the six-month grace period pursuant to CPLR 205(a) as running from either the date of the dismissal itself or the entry date of an order of without imposing any waiting period for service of the order of dismissal with notice of entry or for the potential filing of a motion for leave to reargue, a motion for leave to renew, or an appeal.” HSBC Bank USA, N.A. v Hillaire, ___AD3d___, 2026 NY Slip Op 00353 (2026)(internal citations omitted).

Confronted with a split in decisional law, it is critical to proceed with caution, and operate on the assumption the more restrictive interpretation applies.

[i] CPLR 205-a relates to termination of certain actions related to real property and was effective December 31, 2022.

[ii] In pertinent part RPAPL 1304.2 provides “The notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.”

[iii] Based on recent Court of Appeals decisions, Article 13 LLC v Ponce De Leon Fed. Bank, 2025 NY Slip Op 06536 (2026) and Van Dyke v U.S. Bank, Natl. Assn., 2025 NY Slip Op 06537 (2026), arguments about the retroactivity of FAPA with relation to due process and similar arguments, are not likely to be entertained by New York Courts.

[iv] The decision includes a detailed analysis of the procedure of entry of an order, which is worth a read.