SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

953 

CA 14-01729 

PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

EVA E. DUNLOP, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

SAINT LEO THE GREAT R.C. CHURCH AND CATHOLIC 

DIOCESE OF BUFFALO, DEFENDANTS-RESPONDENTS. 

 

KEVIN T. STOCKER, TONAWANDA, FOR PLAINTIFF-APPELLANT. 

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Diane Y.

Devlin, J.), entered July 1, 2014. The order granted the motion of

defendants to dismiss the action. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the motion in part and

reinstating the complaint against defendant Saint Leo the Great R.C.

Church, and as modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries that she allegedly sustained when she fell at defendant Saint

Leo the Great R.C. Church (Church) on November 1, 2008. A prior

action based on the same occurrence was commenced by summons with

notice on the last day of the statute of limitations (hereafter, first

action), and Supreme Court denied the motion of the Church seeking to

dismiss the first action against it on the ground that plaintiff did

not timely serve the complaint after the Church made a demand

therefor. On a prior appeal, this Court reversed that order, granted

the motion, and dismissed the first action against the Church (Dunlop

v Saint Leo the Great R.C. Church, 109 AD3d 1120, lv denied 22 NY3d

858) (hereafter, Dunlop I). In another prior appeal, this Court

affirmed an order that granted the cross motion of defendant Catholic

Diocese of Buffalo (Diocese) seeking to dismiss the first action

against it for lack of personal jurisdiction (Dunlop v Saint Leo the

Great R.C. Church, 125 AD3d 1282) (hereafter, Dunlop II). Less than

two months after our decision in Dunlop I, but before the entry of the

order appealed from in Dunlop II, plaintiff commenced the present

action against the Church and the Diocese. Plaintiff now appeals from

an order granting defendants’ motion to dismiss the present action as

time-barred.

Contrary to plaintiff’s contention, CPLR 205 (a) does not apply
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CA 14-01729 

to render her present action against the Diocese timely commenced. 

That statute allows the commencement of a new action within six months

when the prior 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” (id.). We conclude that CPLR 205 (a) is inapplicable to the

present action against the Diocese inasmuch as the present action was

commenced before the prior action against the Diocese was terminated

(see Gem Flooring v Kings Park Indus., 5 AD3d 542, 544). Moreover,

the prior action against the Diocese was dismissed for lack of

personal jurisdiction (Dunlop II, 125 AD3d at 1282-1283), and the

statute by its express terms “cannot be applied in that circumstance

to extend the period of limitations” (Wydallis v United States Fid. &

Guar. Co., 63 NY2d 872, 874; see CPLR 205 [a]; Rinaldi v Rochford, 77

AD3d 720, 720). 

We agree with plaintiff, however, that her present action against

the Church was properly commenced pursuant to CPLR 205 (a), and thus

that the court erred in granting defendants’ motion with respect to

the Church. We therefore modify the order accordingly. In cases

involving a neglect to prosecute, CPLR 205 (a) does not allow the

recommencement of an action when the court in the previously dismissed

action “set[s] forth on the record the specific conduct constituting

the neglect, which conduct shall demonstrate a general pattern of

delay in proceeding with the litigation.” Here, we conclude that the

conduct set forth in our decision in Dunlop I does not demonstrate a

general pattern of delay in proceeding with the case (see CPLR

205 [a]; cf. Zulic v Persich, 106 AD3d 904, 905, lv denied 22 NY3d

860).

Finally, although plaintiff contends that costs were erroneously

awarded to defendants, we note that the order on appeal does not in

fact include an award of costs to them.

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court