From Casetext: Smarter Legal Research

Berman v. Szpilzinger

Appellate Division of the Supreme Court of New York, First Department
Jan 6, 1994
200 A.D.2d 367 (N.Y. App. Div. 1994)

Opinion

January 6, 1994

Appeal from the Supreme Court, New York County (Myriam Altman, J.).


The action is barred by the six-year Statute of Limitations governing contract actions. The six-month extension under CPLR 205 (a) was not available to plaintiff since, as explained by the IAS Court, the first action, which raised identical claims, was dismissed because plaintiff's failure to comply with disclosure orders evinced an unwillingness to prosecute the action in timely fashion. Thus, although the first order did not say as much in so many words, the IAS Court did impliedly dismiss the first action with prejudice, as indeed the court itself made clear in dismissing the second action (cf., Barrett v. Kasco Constr. Co., 56 N.Y.2d 830; Colon v. New York City Health Hosps. Corp., 166 A.D.2d 291).

Concur — Murphy, P.J., Kupferman, Asch and Nardelli, JJ.


Summaries of

Berman v. Szpilzinger

Appellate Division of the Supreme Court of New York, First Department
Jan 6, 1994
200 A.D.2d 367 (N.Y. App. Div. 1994)
Case details for

Berman v. Szpilzinger

Case Details

Full title:MICHAEL BERMAN, Appellant, v. NATHAN SZPILZINGER, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 6, 1994

Citations

200 A.D.2d 367 (N.Y. App. Div. 1994)
606 N.Y.S.2d 203

Citing Cases

U.S. Bank v. Fox

Plaintiffs assertion that the exclusion from CPLR §205[a] of cases dismissed for neglect to prosecute is…

U.S. Bank Tr. v. 21647 LLC

CPLR §205 [a] provides that dismissal for neglect to prosecute is excluded where it is "made pursuant to rule…