Practice point: In a prior appeal in this action, the Appellate Division held that plaintiffs could not rely on the relation-back provisions in CPLR 203(f) to cure their
defective initial complaint, based on their failure to comply with the
subject agreements' condition precedent to commencing an action, since the doctrine is dependent upon the existence of a valid
preexisting action. However, on this appeal, the Appellate Division found that the savings
clause of CPLR 205(a) does not bar plaintiffs' action, since the statute
was created to serve in those cases in which the prior action was
defective and so had to be dismissed.
Student note: The dismissal of the prior action for
plaintiffs' failure to comply with a condition precedent was not a
judgment on the merits, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).
Case: Southern Wine & Spirits of Am., Inc. v. Impact Envtl. Eng'g, PLLC, NY Slip Op 02146 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Judgments as a matter of law CPLR 4401
