It looks like Plaintiff came to dislike Supreme Court, New York County. It wanted out, even after the Court dismissed on summary judgment, without prejudice. They had the chance to re-file there, but instead took the case to Westchester County. Forum shopping? We don’t know. But EB Brands Holdings, Inc. v McGladrey, LLP 2017 NY Slip Op 06923 Decided on October 4, 2017 Appellate Division, Second Department tells us that it was a bad, a very bad decision.
“Prior to commencing this action in the Supreme Court, Westchester County, in 2013, the plaintiff brought an action against the defendant in the Supreme Court, New York County (hereinafter the New York County action) asserting similar contentions. An order dated August 14, 2014, in 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.
Thereafter, rather 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.
After the dismissal of the New York County action, the defendant moved pursuant to CPLR 3211(a) for dismissal of the complaint in this action, in Westchester County, alleging, among other things, that the action is barred by the statute of limitations. The Supreme Court granted the defendant’s motion and dismissed the complaint. The plaintiff appeals.
The Supreme Court properly dismissed this action as time-barred (see Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769; Naval v Lehman Coll., 303 AD2d 662, 662; Kourkoumelis v Arnel, 238 AD2d 313, 313). 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 (see Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d at 768-769; Naval v Lehman College, 303 AD2d at 662; Kourkoumelis v Arnel, 238 AD2d at 313).”