Burden of Proof: Save Me!
6.3.2026
A Magnificent, Benevolent Statute
CPLR 205(a) is a statute every New York State litigator must be familiar with. Known as the “savings statute,” the statute (and its predecessors) “has existed in New York law since at least 1788,” and traces “its roots to seventeenth century England.”[1] The Court of Appeals in Malay v. City of Syracuse[2] explained in 2015:
“‘The statute and its predecessors were ‘designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits’, by ‘remedying what might otherwise be the harsh consequence of applying a limitations period where the defending party has had timely notice of the action’. … The statute’s “broad and liberal purpose is not to be frittered away by any narrow construction.’”
The Second Department further explained:
“‘CPLR 205(a) and its predecessors were “designed to insure to the diligent suitor the right to a hearing in court [until he or she] reaches a judgment on the merits. The ‘core purpose’ of the statute is to provide ‘a genuine bite at the apple’, by ‘remedying what might otherwise be the harsh consequence of applying a limitations period where the defending party has had timely notice of the action.’ In other words, CPLR 205(a) provides “a second opportunity to the claimant who has failed the first time around because of some error pertaining neither to the claimant’s willingness to prosecute in a timely fashion nor to the merits of the underlying claim.’”[3]
Put another way:
“The general intent of the statute is to accommodate plaintiffs whose actions are dismissed for mainly procedural reasons which do not implicate personal jurisdiction, laxness, or the merits, particularly since the defendant has had timely notice of the action.”[4]
But It’s Not for Everyone
Notwithstanding its “broad and liberal purpose,” the statute excludes from its warm embrace dismissals based upon four enumerated bases:
1.) Voluntary discontinuance.
2.) A failure to obtain personal jurisdiction over the defendant.
3.) A dismissal of the complaint for neglect to prosecute the action.
4.) A final judgment upon the merits.
In 2008, the statute was amended in tandem with CPLR 3216 to add predicate requirements to be taken by a court where the court seeks to dismiss a pre-note of issue action for neglect to prosecute. The amendment added the following requirement when a court serves a CPLR 3216 demand to resume prosecution:
“Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.”
In Woloszuk v Logan-Young[5] the Fourth Department reversed a dismissal under CPLR 3216 where the trial court’s court-served demand failed to comply with the necessary requirements.
For Everyone Else …
In all other situations where an action is dismissed, the statute provides in pertinent part:
“If an action is timely commenced and is terminated in any other manner … the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”
A Corollary Statute for Certain Actions Involving Real Property
Effective Dec. 30, 2022, a new CPLR provision, CPLR 205-a, titled “Termination of certain actions related to real property,” was added.[6] It encompassed and was limited to: “action[s] upon an instrument described under subdivision four of section two hundred thirteen of this article.” If you are like us, you’ll have to look that up, so we’ll save you the trouble. CPLR 213(4) applies a six-year statute of limitations to:
“(4) an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein;
“(a) In any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.
“(b) In any action seeking cancellation and discharge of record of an instrument described under subdivision four of section fifteen hundred one of the real property actions and proceedings law, a defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.”
However, there are four critical areas where the two statutes differ, and those differences all serve to restrict the applicability of CPLR 205-a when compared with CPLR 205(a):
(1) CPLR 205-a expands the concept of a “neglect to prosecute” a prior action, which, when applicable, precludes a plaintiff from commencing a new action.
(2) “Section 205-a provides, in subdivision (a)(2), that a plaintiff in a mortgage foreclosure action is entitled to only one qualifying six-month grace period. For other actions not involving mortgage foreclosure and that instead are governed by CPLR 205(a), there is no restriction on the number of times that a plaintiff may qualify for a six-month statutory grace period.”
(3) “Under section CPLR 205-a, a successor in interest or an assignee of the original plaintiff may not commence a new action unless it pleads and proves that such successor or assignee is acting on behalf of the original plaintiff.”
(4) “Acts that must be accomplished within each statute’s respective six-month grace period.”[7]
CPLR 205-a Is Less Tolerant of Neglect
While CPLR 205-a permits the same six-month period for the commencement of a new action, it has far greater exclusions from its protection than CPLR 205(a), barring re-commencement if the underlying action is dismissed by:
- A voluntary discontinuance.
- A failure to obtain personal jurisdiction over the defendant.
- A dismissal of the complaint for any form of neglect, including, but not limited to those specified in subdivision 3 of Section 3126, Section 3215, Rule 3216 and Rule 3404 of this chapter.
- For violation of any court rules or individual part rules.
- For failure to comply with any court scheduling orders, or
- By default due to nonappearance for conference or at a calendar call.
- By failure to timely submit any order or judgment.
- Upon a final judgment upon the merits.
As Many Bites at the Apple as You Like Under 205(a)
The Second Department in Tumminia v Staten Is. Univ. Hosp.[8] addressed the issue of whether CPLR 205(a) was only available one time to a plaintiff, or whether a plaintiff could invoke the savings statute on multiple occasions so long as all the criteria in the statute were satisfied on each occasion, and resolved the question by holding that multiple invocations were permissible:
“The issue of whether CPLR 205(a) permits a litigant to file an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, only made timely by a previous application of CPLR 205(a) appears to be an issue of first impression in the New York State appellate courts. Respectfully, we disagree with the Second Circuit and conclude that the plain language of CPLR 205(a) does allow for such a successive application of CPLR 205(a).”
“When resolving a question of statutory interpretation, the primary consideration is to ascertain and give effect to the legislature’s intent.” The “plain language of the statute [is] ‘the clearest indicator of legislative intent.’”
Given that Tumminia was a matter of first impression, in a subsequent New York Supreme Court case, Estate of Aida Figueroa v. Jewish Home Life Care, Manhattan,[9] Justice Gerald Lebovits was confronted with the issue of the retroactivity of the decision, and held:
“Tumminia announced no new rule. To the contrary, the Second Department reached its conclusion based on the language of CPLR 205-(a). Accordingly, this court concludes that Tumminia applies to actions pending when it was issued.”
Only One Bite Under 205-a
Noting the plain language of the recently enacted CPLR 205-a, the Tumminia court held that a plaintiff was limited to one bite of the apple under the new statute:
“The newly-enacted CPLR 205-a(a)(2) specifically provides that “in no event shall the original plaintiff receive more than one six-month extension.” Although FAPA made a change to CPLR 205 by providing that CPLR 205 “shall not apply to any proceeding governed by” CPLR 205-a (citation omitted), it did not add a similar provision to CPLR 205(a) stating that the original plaintiff shall not receive more than one six-month extension.”
Eligible Plaintiffs
The Court of Appeals in Ace Sec. Corp. v. DB Structured Prods., Inc.[10] adhered to the statutory intent underpinning CPLR 205(a):
“Where, as here, the litigant commencing the second action is not the original plaintiff, application of CPLR 205 (a) would protect the rights of a dilatory – not a diligent – suitor. By failing to bring the action within the statute of limitations, HSBC signaled that it had no intention to pursue its claims in court. CPLR 205 (a) does not apply and HSBC’s failure to commence an action within the statute of limitations is fatal.”
Unlike CPLR 205(a), CPLR 205-a, which contains the same language as the original statute, to wit, that “the original plaintiff, or, if the original plaintiff dies and the cause of action survives, his or her executor or administrator,” spells out in subsection (a)(1):
“(1). a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff[.]”
How Are the Six Months Measured?
A party intending to commence a new action under CPLR 205(a) or CPLR 205-a must do so “within six months after the termination.” Of course, in order to ascertain the deadline by which a new action must be commenced, it is necessary to establish the “termination” date for the original action (accrual date).
As with many other procedural issues, there is a split in authority among the departments. Prior to the 2026 decision in HSBC Bank USA, N.A. v. Hillaire,[11] the Second Department also had no clear answer. Hillaire, a decision by Justice Mark Dillon, flagged the differing standards among the departments and within the Second Department, and enunciated a bright line rule:
“Cases from the Appellate Division, First, Third, and Fourth Departments, have measured the six-month grace period pursuant to CPLR 205(a) as running from either the date of the dismissal itself or the entry date of an order of dismissal without imposing any waiting period for service of the order of dismissal with notice of entry or for the potential filing of a motion for leave to reargue, a motion for leave to renew, or an appeal. In other words, appellate cases throughout the State, and within our own judicial department, are not uniform. The trial bench and the practicing bar are entitled to judicial clarity on this issue.”
Justice Dillon highlighted the conflicting interpretations:
“Under certain circumstances, both statutes [CPLR 205(a) and CPLR 205-a] permit the plaintiff a six-month window to recommence an action that otherwise would be untimely, measured from the “termination” of a prior action. Is the termination of the prior action the date an order of dismissal is executed by the court, the date the order of dismissal is entered with the clerk, or the date that the order of dismissal is served upon other parties with notice of entry? Is the termination of the prior action delayed 30 days for the potential filing of a notice of appeal pursuant to CPLR 5513(a) or a motion for leave to reargue pursuant to CPLR 2221(d), and further delayed by the appellate process when an actual appeal is undertaken, or is there no termination of the prior action until a final judgment is entered or served with notice of entry?”
For those of you clutching your chests while simultaneously dialing 911, Justice Dillon mercifully opened the decision with the court’s holding:
“We conclude, for reasons stated below, that when no appeal is taken by a party from an order of dismissal, the six-month period for recommencing an action under CPLR 205-a, and by extension under CPLR 205(a), begins to run once 30 days have elapsed following service of the order of dismissal with notice of entry.”
However, and this is a big however, to the extent there is contrary case law in the other departments, the Hillaire decision is only binding in the Second Department.
And if an Appeal Has Been Taken …
The Court of Appeals in Malay, supra, held:
“[T]his Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect. We resolve that question now by adhering to the Lehman Bros. decision and holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly “exhausted,” either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned.”
Act(s) Required Within the Six-Month Period To Recommence
This is perhaps the most dangerous difference between the two statutes, and the issue that was critical in Hillaire:[12]
“Whereas CPLR 205(a) requires that service of process for a recommenced action merely be “effected” upon defendants within six months from the termination of the prior action, CPLR 205-a requires that service of process be “completed” within that same time period. The language of CPLR 205-a places more time pressure upon plaintiffs to successfully recommence actions, as the additional time for completing service of process, rather than merely effecting service of process, upon defendants eats into the operative six-month statutory period.”
…
“Thus, plaintiffs seeking to recommence mortgage foreclosure actions under CPLR 205-a must necessarily budget more time for both effecting and completing service of process than may be required when CPLR 205(a) is applicable.”
So, was service completed in Hillaire within the six-month period?
“In this appeal, the dismissal order, directing dismissal of the 2013 action, was e-filed and served with notice of entry on March 29, 2022. Contrary to the defendants’ contention, for the purposes of CPLR 205-a, the 2013 action terminated when the plaintiff’s right to appeal expired 30 days later, on April 28, 2022 (citations omitted). There was then a six-month grace period in which the plaintiff was permitted to commence a new action and complete service, ending on October 28, 2022. Insofar as this action was commenced on September 9, 2022, and the defendants concede that the plaintiff completed service upon them on October 20, 2022, less than six months from the termination of the 2013 action, this action was timely commenced.”
Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them.[13]
Conclusion
The gift that both CPLR 205(a) and CPLR 205-a affords some litigants is vivifying; squandering it is a malefaction. Although many practitioners will spend their entire careers without needing it, for those who do the savings statute will likely be the greatest gift they receive from the CPLR.
David Paul Horowitz, of the Law Offices of David Paul Horowitz, has represented parties in personal injury, professional negligence, and commercial litigation for over 30 years. He also acts as a private arbitrator and mediator and a discovery referee overseeing pre-trial proceedings and has been a member of the Eastern District of New York’s mediation panel since its inception. He drafts legal ethics opinions, represents judges in proceedings before the New York State Commission on Judicial Conduct and attorneys in disciplinary matters, and serves as a private law practice mentor. He teaches classes in New York practice, professional responsibility, and electronic evidence and discovery at Columbia Law School.
Katryna L. Kristoferson is a partner at the Law Offices of David Paul Horowitz and has litigation experience across many practice areas. She has lectured on CPLR updates, motion practice, and implicit bias, and teaches a course on bias and the law at the Elisabeth Haub School of Law at Pace University.
Endnotes:
[1] Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193 (2d Dep’t 2017).
[2] 25 N.Y.3d 323 (2105).
[3] Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193 (2d Dep’t 2017).
[4] HSBC Bank USA, N.A. v. Hillaire, 2026 N.Y. Slip Op. 00353 (2d Dep’t 2026).
[5] 237 A.D.3d 1497 (4th Dep’t 2025).
[6] A.07737, 2021 Assembly (N.Y. 2021), https://nyassembly.gov/leg/?default_fld=%0D%0A&leg_video=&bn=A07737&term=2021&Summary=Y&Memo=Y&Text=Y.
[7] HSBC Bank USA, N.A. v Hillaire, A.D.3d, 2026 N.Y. Slip Op. 00353 (2d Dep’t 2026).
[8] 241 A.D.3d 17 (2d Dep’t 2025).
[9] Estate of Aida Figueroa v. Jewish Home Life Care, Manhattan, 2025 N.Y. Slip Op. 25276 (Sup. Ct. New York City. 2025).
[10] 38 N.Y.3d 643 (2022).
[11] HSBC Bank USA, N.A. v. Hillaire, ___A.D.3d___, 2026 N.Y. Slip Op. 00353 (2d Dep’t 2026).
[12] Id.
[13] Id.
