        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

953
CA 14-01729
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


EVA E. DUNLOP, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SAINT LEO THE GREAT R.C. CHURCH AND CATHOLIC
DIOCESE OF BUFFALO, DEFENDANTS-RESPONDENTS.


KEVIN T. STOCKER, TONAWANDA, FOR PLAINTIFF-APPELLANT.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered July 1, 2014. The order granted the motion of
defendants to dismiss the action.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the complaint against defendant Saint Leo the Great R.C.
Church, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that she allegedly sustained when she fell at defendant Saint
Leo the Great R.C. Church (Church) on November 1, 2008. A prior
action based on the same occurrence was commenced by summons with
notice on the last day of the statute of limitations (hereafter, first
action), and Supreme Court denied the motion of the Church seeking to
dismiss the first action against it on the ground that plaintiff did
not timely serve the complaint after the Church made a demand
therefor. On a prior appeal, this Court reversed that order, granted
the motion, and dismissed the first action against the Church (Dunlop
v Saint Leo the Great R.C. Church, 109 AD3d 1120, lv denied 22 NY3d
858) (hereafter, Dunlop I). In another prior appeal, this Court
affirmed an order that granted the cross motion of defendant Catholic
Diocese of Buffalo (Diocese) seeking to dismiss the first action
against it for lack of personal jurisdiction (Dunlop v Saint Leo the
Great R.C. Church, 125 AD3d 1282) (hereafter, Dunlop II). Less than
two months after our decision in Dunlop I, but before the entry of the
order appealed from in Dunlop II, plaintiff commenced the present
action against the Church and the Diocese. Plaintiff now appeals from
an order granting defendants’ motion to dismiss the present action as
time-barred.

     Contrary to plaintiff’s contention, CPLR 205 (a) does not apply
                                 -2-                           953
                                                         CA 14-01729

to render her present action against the Diocese timely commenced.
That statute allows the commencement of a new action within six months
when the prior action “is timely commenced and is terminated in any
other manner than by a voluntary discontinuance, a failure to obtain
personal jurisdiction over the defendant, a dismissal of the complaint
for neglect to prosecute the action, or a final judgment upon the
merits” (id.). We conclude that CPLR 205 (a) is inapplicable to the
present action against the Diocese inasmuch as the present action was
commenced before the prior action against the Diocese was terminated
(see Gem Flooring v Kings Park Indus., 5 AD3d 542, 544). Moreover,
the prior action against the Diocese was dismissed for lack of
personal jurisdiction (Dunlop II, 125 AD3d at 1282-1283), and the
statute by its express terms “cannot be applied in that circumstance
to extend the period of limitations” (Wydallis v United States Fid. &
Guar. Co., 63 NY2d 872, 874; see CPLR 205 [a]; Rinaldi v Rochford, 77
AD3d 720, 720).

      We agree with plaintiff, however, that her present action against
the Church was properly commenced pursuant to CPLR 205 (a), and thus
that the court erred in granting defendants’ motion with respect to
the Church. We therefore modify the order accordingly. In cases
involving a neglect to prosecute, CPLR 205 (a) does not allow the
recommencement of an action when the court in the previously dismissed
action “set[s] forth on the record the specific conduct constituting
the neglect, which conduct shall demonstrate a general pattern of
delay in proceeding with the litigation.” Here, we conclude that the
conduct set forth in our decision in Dunlop I does not demonstrate a
general pattern of delay in proceeding with the case (see CPLR
205 [a]; cf. Zulic v Persich, 106 AD3d 904, 905, lv denied 22 NY3d
860).

     Finally, although plaintiff contends that costs were erroneously
awarded to defendants, we note that the order on appeal does not in
fact include an award of costs to them.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
