Extebank v. Finkelstein

188 A.D.2d 513, 591 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 14413

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1992
• Status: Published

Opinion

In an action to recover damages, inter alia, for fraud, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), entered October 18, 1990, which granted the respondent’s motion to dismiss the complaint insofar as it is asserted against him pursuant to CPLR 3211 (a) (5).

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

Contrary to the respondent’s contention, the dismissal by the United States District Court for the Eastern District of New York of the plaintiff’s pendent State claims, without prejudice, pursuant to Federal Rule of Civil Procedure, rule 41 (a) (2), was not equivalent to a voluntary discontinuance under CPLR 205 (a). Therefore, the plaintiff was entitled to commence this action in State court within six months after the Federal action was terminated (see, Censor v Mead Reins. Corp., 176 AD2d 600).

Further, we find that this action was timely commenced. The Federal action was terminated on December 19, 1989. Although the court had orally announced its decision to dismiss the case on September 15, 1989, it was not until December 19, 1989, that the court issued an order dismissing the case. Thus, the commencement of this action on May 3, 1990, by personal service on the respondent, was timely (see, Fed Rules Civ Proc, rule 58; CPLR 2219; Carter v Castle Elec. Contr. Co., 23 AD2d 768). Mangano, P. J., Bracken, Sullivan and O’Brien, JJ., concur.