Friday, November 09, 2007

COA's Harris decision is not retroactive

In Wilk v. Genesee & Wyoming R.R., the Fourth Department held today that CPLR 205(a) tolling does not apply where a plaintiff commences a pre-action discovery proceeding and, without obtaining a new index number, commences suit. The first suit was dismissed under then-existing 4th Dep't precedent on the ground that the failure to obtain an index number constituted a non-waivable subject matter jurisdiction defect. Plaintiff never appealed. After the time to appeal passed, the Court of Appeals issued its decision in Harris v. Niagara Falls Bd. of Educ., 6 NY3d 155, 158(2006), which held that the failure to obtain a new index number is a waivable defect. Plaintiff commenced a 2d action. Defendants moved to dismiss, which was denied. ABL and his colleagues argued on appeal that the 2d action was not properly "commenced" within the meaning of CPLR 205(a). The Fourth Department agreed. It further held that Harris was improperly applied retroactively to the dismissal in the first action, noting that "[r]etroactivity analysis does not permit application of new law to cases already resolved" (quoting Cutler v. Travelers' Ins. Co., 159 AD2d 1014, 1015).



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