New York Law Review

Tag: CPLR 205(a)

  • Westchester Joint Water Works v. Assessor of City of Rye, 26 N.Y.3d 569 (2015): Recommencement of Tax Certiorari Proceedings After Dismissal for Non-Compliance with RPTL 708(3)

    26 N.Y.3d 569 (2015)

    A proceeding dismissed for failure to comply with Real Property Tax Law (RPTL) 708(3)’s mailing requirements cannot be recommenced under CPLR 205(a).

    Summary

    The New York Court of Appeals held that a tax certiorari proceeding dismissed due to the petitioner’s failure to properly notify the relevant school district, as mandated by RPTL 708(3), cannot be revived by invoking CPLR 205(a). The court reasoned that RPTL 708(3) provides a comprehensive framework for dealing with non-compliance, allowing dismissal unless “good cause” is shown. Allowing CPLR 205(a) to override this would undermine the statute’s intent to provide certainty and efficiency in tax proceedings, especially concerning school district involvement and financial planning. The court emphasized that when the RPTL specifically addresses an issue, the CPLR should not be applied.

    Facts

    Westchester Joint Water Works initiated multiple tax certiorari proceedings challenging property tax assessments on two parcels. The petitioner failed to comply with RPTL 708(3), which requires petitioners to mail a copy of the petition to the superintendent of schools of any school district where the property is located. The petitioner sent the notice to the wrong school district. The correct district intervened and moved to dismiss the petitions due to the lack of proper notice. The trial court granted the dismissal, and the petitioner sought to recommence the proceedings under CPLR 205(a), which was denied by the trial court.

    Procedural History

    The Supreme Court granted the school district’s motion to intervene and dismiss the petitions for non-compliance with RPTL 708(3) and denied the petitioner’s cross-motion to recommence the proceedings. The Appellate Division modified the lower court’s decision by dismissing the petitions only regarding the parcel within the correct school district. The Court of Appeals granted leave to appeal from the Appellate Division decision.

    Issue(s)

    Whether a tax certiorari proceeding dismissed for failing to comply with RPTL 708(3) can be recommenced under CPLR 205(a).

    Holding

    No, because RPTL 708(3) provides a specific and comprehensive remedy for dismissals due to non-compliance, precluding the application of CPLR 205(a).

    Court’s Reasoning

    The court relied on three primary arguments. First, RPTL 708(3) provides an explicit remedy for non-compliance—dismissal unless good cause is shown. Thus, the court held that the RPTL, not the CPLR, governs the outcome in such instances. The court cited W.T. Grant Co. v. Srogi, 52 N.Y.2d 496 (1981) as precedent, saying “[a]s a general rule, there should be no resort to the provisions of the CPLR in instances where the [RPTL] expressly covers the point in issue.” Second, the court determined that allowing CPLR 205(a) to permit recommencement would render the “good cause” exception in RPTL 708(3) meaningless, violating the rule of statutory construction that every part of a statute must have meaning. Finally, the court cited the legislative history of RPTL 708(3) to explain the statute’s purpose in allowing school districts to avoid the costs of participating in all tax certiorari proceedings. The notification requirements enable school districts to make informed decisions about intervention and reserve funds for potential tax liabilities. Allowing CPLR 205(a) to circumvent this framework would frustrate the legislative intent.

    Practical Implications

    This case clarifies the interplay between the RPTL and the CPLR in tax certiorari proceedings. Attorneys must strictly adhere to the notice requirements of RPTL 708(3). Failure to do so, absent a showing of good cause, will result in the dismissal of the proceeding, and CPLR 205(a) cannot be used to revive the claim. This decision underscores the importance of carefully following statutory procedures in property tax litigation and highlights how the court prioritizes the specific provisions of the RPTL over general procedural rules. School districts now have more certainty that if they don’t receive proper notice, they do not have to participate in the proceeding and can plan their finances accordingly. This case is a significant precedent in New York tax law, particularly for those who handle property tax litigation and municipal law.

  • Malay v. City of Syracuse, 24 N.Y.3d 325 (2014): When a Prior Action Terminates for Purposes of CPLR 205(a) After an Appeal is Dismissed

    Malay v. City of Syracuse, 24 N.Y.3d 325 (2014)

    For purposes of CPLR 205(a), a prior action terminates when an appeal taken as of right is dismissed by an intermediate appellate court due to the plaintiff’s failure to perfect the appeal.

    Summary

    The case addresses when a prior action terminates for purposes of CPLR 205(a) when an appeal is taken as of right but dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect the appeal. The plaintiff filed a federal lawsuit, which was dismissed by the district court. She appealed to the Second Circuit, but the appeal was dismissed because she failed to file a brief and appendix. Before the Second Circuit dismissed the appeal, she commenced a state court action. The New York Court of Appeals held that the prior action terminated when the Second Circuit dismissed the appeal, not when the district court issued its order, allowing the plaintiff to proceed with her state court case because it was filed within the six-month window provided by CPLR 205(a).

    Facts

    In 2007, the plaintiff, residing in an apartment, was exposed to CS gas fired by police officers during a hostage situation at her building. She claimed lasting injuries and loss of property. In June 2008, she sued in federal court, alleging constitutional violations and negligence. The district court dismissed some claims and granted summary judgment on the remaining federal claims on September 30, 2011, declining jurisdiction over state law claims. Plaintiff appealed to the Second Circuit but failed to file her brief, and the appeal was dismissed on July 10, 2012. On June 25, 2012, before the dismissal, she commenced a state court action. The defendants moved to dismiss the state action as untimely, arguing it was filed outside the CPLR 205(a) six-month window.

    Procedural History

    The plaintiff filed suit in the United States District Court for the Northern District of New York, alleging violations of her federal and state constitutional rights and asserting common-law negligence claims. The District Court initially dismissed some claims and later granted summary judgment for the defendants, dismissing the remaining federal claims. The plaintiff appealed to the Second Circuit, which dismissed the appeal for failure to perfect. The plaintiff then filed suit in the New York State Supreme Court, which dismissed the complaint, holding the federal action terminated on the date of the district court’s order. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the prior action terminated for the purposes of CPLR 205(a) when the district court issued its order or when the Second Circuit dismissed the plaintiff’s appeal.

    Holding

    1. Yes, because the prior action terminated when the Second Circuit dismissed the appeal.

    Court’s Reasoning

    The Court of Appeals considered the remedial purpose of CPLR 205(a), designed to ensure diligent litigants get a hearing on the merits. The court referenced its holding in Lehman Bros. v Hughes Hubbard & Reed, L. L. P. which held that a prior action terminates for purposes of CPLR 205(a) when an appeal taken as of right is exhausted. The court stated that a prior action terminates for purposes of CPLR 205(a) when an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect the appeal. It rejected the defendant’s argument that the six-month tolling period started when the district court issued its order. The court emphasized that “termination” of the prior action occurs when appeals as of right are exhausted. Allowing the state court action to proceed was consistent with the statute’s remedial purpose, as the defendants had timely notice of the claims. The court also noted that forcing plaintiffs to file new actions while appeals were pending could be wasteful of judicial resources.

    Practical Implications

    This decision clarifies that for CPLR 205(a) purposes, a prior action continues until a non-discretionary appeal is finally resolved, even if by dismissal due to failure to perfect. Attorneys must consider that the deadline for refiling under CPLR 205(a) begins when an appeal is dismissed, rather than when the lower court’s order is issued. This case supports the practice of filing a new action before an appeal is dismissed. The decision reduces the risk of a claim being time-barred because the clock for refiling starts only after the appeal process concludes, as long as the new action is filed within six months of the dismissal.

  • Norex Petroleum Ltd. v. Access Industries, Inc., 23 N.Y.3d 604 (2014): Interplay of Borrowing and Savings Statutes

    23 N.Y.3d 604 (2014)

    When a nonresident plaintiff’s timely action in New York federal court is terminated on non-merits grounds, the plaintiff can refile the claims in state court within six months under New York’s savings statute, even if the claim would be untimely in the jurisdiction where the cause of action accrued.

    Summary

    Norex, a Canadian company, initially sued in federal court in New York, alleging RICO violations and state law claims related to the takeover of a Russian oil company. The federal case was dismissed on jurisdictional grounds after years of litigation. Norex then refiled the state law claims in New York state court within six months. The defendants argued the state claims were time-barred under CPLR 202 because Alberta, where Norex’s economic injury occurred, has a shorter statute of limitations and no savings statute. The New York Court of Appeals held that because the initial federal action was timely, CPLR 205(a) allowed the refiling in state court, regardless of Alberta’s laws.

    Facts

    Norex, a Canadian company, claimed the defendants illegally took control of a Russian oil company in 2002, causing economic harm to Norex in Alberta. Norex sued in the Southern District of New York in February 2002, alleging RICO violations and adding state law claims later. The federal district court initially dismissed on forum non conveniens, but the Second Circuit reversed. After further proceedings and an intervening Supreme Court decision (Morrison v. National Australia Bank Ltd.), the Second Circuit ultimately affirmed dismissal for failure to state a claim in December 2010. Norex then filed in New York State Supreme Court in March 2011.

    Procedural History

    Norex initially filed in the U.S. District Court for the Southern District of New York. The District Court granted a motion to dismiss based on forum non conveniens, but the Second Circuit reversed. The District Court then dismissed for lack of subject matter jurisdiction, which was affirmed by the Second Circuit. Norex then commenced an action in New York Supreme Court. The Supreme Court dismissed the complaint as time-barred. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

    Issue(s)

    Whether CPLR 205(a), New York’s savings statute, permits a nonresident plaintiff to refile claims in state court within six months of a federal action’s non-merits termination, when the suit would be untimely in the jurisdiction where the claims accrued, due to CPLR 202, New York’s borrowing statute.

    Holding

    Yes, because once the initial action was timely commenced in federal court in New York, the borrowing statute’s purpose of preventing forum shopping was fulfilled, and CPLR 202 had no further role to play.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 202’s purpose is to prevent forum shopping by nonresidents seeking to take advantage of New York’s longer statute of limitations. Once Norex filed a timely action in federal court in New York, that purpose was served. The court emphasized that CPLR 205(a) is designed to ensure a diligent suitor the right to a hearing on the merits. Quoting Gaines v. City of New York, the court stated, “The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” Because the initial federal action was timely under CPLR 202, the subsequent state court action was also considered timely commenced at the time of the initial action under CPLR 205(a). The Court rejected the argument that Alberta’s lack of a savings statute affected the analysis, emphasizing that CPLR 202 had already been satisfied by the timely filing of the initial action. The Court distinguished Besser v Squibb & Sons, noting that the revival statute in that case was explicitly intended to benefit only New York residents, whereas CPLR 205(a) contains no such limitation. The Court concluded that its interpretation best comports with the statutory language and honors both the borrowing statute’s purpose and the savings statute’s goal of resolving actions on their merits.

  • Reliance Ins. Co. v. PolyVision Corp., 9 N.Y.3d 55 (2007): CPLR 205(a) and Refiling by a Different Corporate Entity

    9 N.Y.3d 55 (2007)

    New York Civil Practice Law and Rules (CPLR) § 205(a) does not permit a corporation to refile an action when a previous, timely-filed action was mistakenly commenced in the name of a different, related corporate entity and was subsequently dismissed for naming the wrong plaintiff.

    Summary

    Reliance Insurance Company (RIC) brought a federal action after a previous state action, involving the same faulty panels, was dismissed because it was brought by Reliance Insurance Company of New York (RNY), a related but distinct corporate entity. RIC argued that CPLR 205(a), which provides a six-month grace period for refiling actions, should apply. The Second Circuit certified the question to the New York Court of Appeals. The Court of Appeals held that CPLR 205(a) does not allow a different corporation, even a related one, to benefit from the statute’s savings provision, as the statute explicitly limits the benefit to “the plaintiff” in the original action.

    Facts

    In 1987, the Lindenhurst School Board contracted with Park Construction. RIC issued bonds for Park’s performance. Separately, RNY issued similar bonds for a different project with the same obligee. In 1988, Park filed for bankruptcy, and RIC assumed responsibility. RIC inherited Park’s rights, including an agreement with PolyVision to furnish curtain wall panels. In 1990, the panels showed signs of deterioration, and RIC replaced them. In 1994, RNY, instead of RIC, sued PolyVision in state court for the faulty panels. In 2004, the state court dismissed the complaint because RNY was not the real party in interest.

    Procedural History

    1. 1994: RNY commenced an action against PolyVision in state court.
    2. 2003: The Appellate Division rejected intervention, noting RNY was the wrong plaintiff.
    3. 2004: The state court dismissed the complaint because RNY was not the real party in interest.
    4. RIC then commenced an action in the Federal District Court.
    5. The District Court granted PolyVision’s motion to dismiss.
    6. The Second Circuit certified a question to the New York Court of Appeals.

    Issue(s)

    Whether New York CPLR § 205(a) allows a corporation to refile an action within six months when a previous, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity, and has been dismissed for naming the wrong plaintiff?

    Holding

    No, because CPLR 205(a) explicitly bestows the benefit of the statute only on “the plaintiff” who prosecuted the initial action, and RIC is a different legal entity from RNY.

    Court’s Reasoning

    The Court of Appeals focused on the explicit language of CPLR 205(a), which states that only “the plaintiff” may commence a new action. The Court emphasized that it has not read “the plaintiff” to include an individual or entity other than the original plaintiff, except in the context of an executor or administrator acting on behalf of a deceased plaintiff. The court distinguished the case from George v. Mt. Sinai Hosp., where the action was allowed to proceed because it was the same person whose rights were being vindicated, albeit in a different capacity (administratrix). Here, RIC sought to enforce its own rights, not the rights of RNY. Allowing RIC to proceed would open a new avenue in the law and potentially revive stale claims. The court noted that a diligent corporate suitor should determine which entity has been wronged before bringing suit. The court stated, “To grant the right conferred by [the statute] to a different party plaintiff, representing in part different interests, would require the placing of a construction upon the section plainly beyond its intent and purpose.” Furthermore, the court was wary of the ramifications of allowing a “different, related corporate entity” the benefit of the grace period, given the potential for varying degrees of corporate relationships. Therefore, the Court preferred to adhere to the statute’s plain language and consistent application.

  • Lehman Brothers, Inc. v. Hughes Hubbard & Reed, 92 N.Y.2d 1014 (1998): Timeliness of Action After Dismissal in Another State

    92 N.Y.2d 1014 (1998)

    CPLR 205(a)’s six-month tolling period begins to run when a party’s sole non-discretionary appeal is exhausted, and the pursuit of further discretionary appeals does not forestall the commencement of this period.

    Summary

    Lehman Brothers commenced a legal malpractice action in New York after a similar action in Texas was dismissed for lack of personal jurisdiction. Lehman Brothers argued that the New York statute of limitations was tolled under CPLR 205(a) due to the prior Texas action. The New York Court of Appeals held that even assuming CPLR 205(a) applied, the New York action was untimely because it was commenced more than six months after the termination of the Texas action, which the court defined as the exhaustion of non-discretionary appeals. The pursuit of discretionary appeals did not extend the tolling period.

    Facts

    Lehman Brothers, Inc. sued Hughes Hubbard & Reed in New York for legal malpractice, alleging incomplete advice on Texas law. Lehman Brothers had previously filed the same claim in Texas, but it was dismissed on December 16, 1992, for lack of personal jurisdiction due to Hughes Hubbard & Reed’s lack of minimum contacts with Texas. Lehman Brothers appealed to the Texas State Court of Appeals, which affirmed the dismissal on June 1, 1995. Lehman Brothers’ request for a rehearing was denied on July 13, 1995. The Texas Supreme Court denied discretionary review on November 22, 1995, and a subsequent request for rehearing on January 11, 1996. The U.S. Supreme Court denied certiorari on June 10, 1996. Lehman Brothers then filed the New York action on July 11, 1996.

    Procedural History

    Lehman Brothers initially filed suit in Texas, which was dismissed by the Texas District Court for lack of personal jurisdiction. The Texas State Court of Appeals affirmed the dismissal. The Texas Supreme Court and the U.S. Supreme Court denied further review. Lehman Brothers then filed suit in the Supreme Court, New York County. The Supreme Court granted Hughes Hubbard & Reed’s motion to dismiss, finding the action time-barred. The Appellate Division affirmed. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the present action was timely commenced in New York under CPLR 205(a) when the same action was previously dismissed in Texas for lack of personal jurisdiction, given that the New York action was commenced more than six months after the intermediate Texas appellate court affirmed the dismissal, but within six months of the U.S. Supreme Court denying certiorari.

    Holding

    No, because the six-month tolling period under CPLR 205(a) began to run when Lehman Brothers’ sole non-discretionary Texas appeal was exhausted, and the subsequent pursuit of discretionary appeals to the Texas Supreme Court and the U.S. Supreme Court did not toll the commencement of that period.

    Court’s Reasoning

    The Court of Appeals focused on when the Texas action terminated for purposes of CPLR 205(a). It cited Cohoes Hous. Auth. v Ippolito-Lutz, Inc., stating that a party cannot extend the statutory six-month period by continually pursuing discretionary appellate review. The court distinguished between appeals taken as a matter of right and discretionary appeals, noting that the six-month period begins when the prior action has terminated, which occurs after the exhaustion of non-discretionary appeals. In this case, the Texas action terminated on June 1, 1995, when the Texas Court of Appeals affirmed the dismissal. Lehman Brothers’ subsequent attempts to seek discretionary review from the Texas Supreme Court and the U.S. Supreme Court did not delay the start of the six-month tolling period. Since the New York action was filed on July 11, 1996, more than six months after the termination of the Texas proceeding, it was deemed untimely. The court stated, “It is not the purpose of CPLR 205 (a) to permit a party to continually extend the statutory period by seeking additional discretionary appellate review.”

  • Carven Associates v. American Home Assurance Corp., 84 N.Y.2d 927 (1994): Res Judicata Effect of Dismissal for Discovery Violations

    84 N.Y.2d 927 (1994)

    A dismissal with prejudice for willful and repeated failure to comply with court-ordered discovery acts as res judicata, barring the plaintiff from re-litigating the same claims in a subsequent action.

    Summary

    Carven Associates sued American Home Assurance Corp. (American Home). The Supreme Court initially dismissed the complaint but later reinstated it. The Appellate Division affirmed the reinstatement. However, another Appellate Division (Second Department) determined, in a separate but related case, that a prior action based on the same events had been dismissed due to Carven Associates’ willful and repeated refusal to obey court-ordered discovery. As a result, Carven Associates was barred from re-instituting their action. The Court of Appeals reversed the first Appellate Division ruling, holding that the Supreme Court properly exercised its discretion to dismiss the complaint based on the res judicata effect of the prior dismissal for discovery violations.

    Facts

    Carven Associates filed an action against American Home. This action was preceded by a similar lawsuit based on the same underlying events. In the prior action, Carven Associates repeatedly and willfully failed to comply with court-ordered discovery.

    Procedural History

    1. The Supreme Court initially dismissed Carven Associates’ complaint against American Home but later reinstated it.
    2. The Appellate Division, First Department, affirmed the Supreme Court’s order reinstating the complaint.
    3. In a separate proceeding related to the prior action (same facts and parties), the Appellate Division, Second Department, determined that the prior action had been dismissed due to Carven Associates’ willful and repeated failure to comply with discovery orders.
    4. The Appellate Division, Second Department, held that Carven Associates was therefore barred from re-instituting the action under CPLR 205(a).
    5. The Court of Appeals reversed the Appellate Division, First Department’s order, reinstating the Supreme Court’s dismissal of the complaint.

    Issue(s)

    Whether the Supreme Court properly exercised its discretion to dismiss the complaint based on the determination by a different Appellate Division that a prior action, based on the same events, was dismissed due to the plaintiff’s willful and repeated refusal to obey court-ordered discovery, thereby barring the plaintiff from re-litigating the same claims.

    Holding

    Yes, because the prior dismissal for willful and repeated failure to comply with discovery orders acts as res judicata, preventing the plaintiff from re-litigating the same claims in a subsequent action.

    Court’s Reasoning

    The Court of Appeals emphasized the unique circumstances of the case. It acknowledged that the Appellate Division, First Department, had previously affirmed the reinstatement of the complaint. However, the subsequent ruling by the Appellate Division, Second Department, regarding the dismissal of the prior action for discovery violations, fundamentally altered the legal landscape.

    The Court of Appeals implicitly recognized the importance of upholding the integrity of the discovery process. When a party willfully and repeatedly disobeys court orders related to discovery, the resulting dismissal with prejudice carries significant consequences. To allow that party to re-litigate the same claims would undermine the authority of the court and reward non-compliance. The court implicitly enforced the principle that “litigation cannot be a game in which the players hide the ball.” Although not explicitly stated, policy considerations regarding judicial efficiency and fairness to the defendant likely influenced the court’s decision.

    CPLR 205(a), which typically allows a plaintiff to re-file an action within a certain timeframe after a dismissal, was deemed inapplicable because the prior dismissal was based on the plaintiff’s misconduct, as confirmed in a ruling by another appellate court on the same case between the parties. This created a unique situation where the Supreme Court was justified in reversing its prior decision. The decision underscores the importance of complying with discovery orders and the res judicata effect of dismissals predicated on such non-compliance. The court did not delve into the specific types of discovery violations nor whether American Home was prejudiced as a result of the violation, but emphasized willful noncompliance. The Court of Appeals was unanimous in its decision.

  • Markoff v. South Nassau Community Hospital, 61 N.Y.2d 283 (1984): Recommencement Statute Requires Valid Initial Service

    Markoff v. South Nassau Community Hospital, 61 N.Y.2d 283 (1984)

    CPLR 205(a), the statute allowing for recommencement of an action after dismissal, requires that the initial action be timely commenced with proper service; an action dismissed for lack of personal jurisdiction due to improper service is not considered “commenced” for the purposes of the statute, even if the defendant had actual notice.

    Summary

    Plaintiff sued defendants for medical malpractice and wrongful death. The initial attempt at service was deemed invalid, and the ex parte order authorizing expedient service was vacated. After the statute of limitations had expired, the plaintiff properly served the defendants. The Court of Appeals held that CPLR 205(a) did not apply because the original action was never properly commenced due to the lack of valid service. The Court emphasized that actual notice to the defendant does not cure a failure to comply with the prescribed methods of service. Therefore, the action was time-barred.

    Facts

    Milton Markoff was treated at South Nassau Community Hospital by defendant doctors in October 1978. He died eight months later, allegedly due to the defendants’ malpractice. Plaintiff Ruth Markoff, individually and as executrix, attempted to commence an action for medical malpractice and wrongful death.

    Procedural History

    Plaintiff initially attempted service on July 14, 1980, which was unsuccessful. On March 19, 1981, plaintiff obtained an ex parte order authorizing expedient service. Summonses were left at the hospital for the defendant doctors on March 30, 1981. The defendants asserted lack of personal jurisdiction and moved to vacate the ex parte order, which was granted in May 1981. The action was terminated on September 23, 1981, for lack of personal jurisdiction. In late August and early September 1981, the plaintiff personally served the defendants. The defendants raised the statute of limitations as a defense. The plaintiff argued the answer was untimely and that CPLR 205 applied. The defendants successfully moved to vacate the default and to dismiss the action based on the statute of limitations. The Appellate Division affirmed the vacatur of the ex parte order and the dismissal of the complaint. The Court of Appeals then reviewed the case.

    Issue(s)

    Whether CPLR 205(a) applies to allow recommencement of an action when the initial action was dismissed for lack of personal jurisdiction due to improper service, even if the defendant had actual notice of the action.

    Holding

    No, because CPLR 205(a) requires that the initial action be timely commenced, and an action dismissed for lack of personal jurisdiction due to improper service is not considered “commenced” under the statute, regardless of actual notice.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 205(a) allows a plaintiff to commence a new action within six months of the termination of a prior action if the prior action was “timely commenced.” The Court stated that an action is “commenced” when there has been service of a summons, but such service is only effective when made pursuant to the appropriate method authorized by the CPLR. The Court emphasized that “actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service.” The Court distinguished this situation from cases where the court had subject matter jurisdiction, noting that here, the lack of personal jurisdiction in the first action meant it was never properly “commenced.” The Court stated it was not creating a new exception to CPLR 205(a), but rather clarifying that a timely commencement is a condition precedent to invoking the statute. Because the ex parte order authorizing alternative service was vacated, the initial service was nullified, and the plaintiff’s later service occurred after the statute of limitations had run, barring the action.