Successive Use of New York’s Saving Statute: The Second Department Authorises Multiple Invocations of CPLR 205(a)
Commentary on Tumminia v. Staten Island University Hospital, 2025 NY Slip Op 03352

1. Introduction

Tumminia v. Staten Island University Hospital marks the first time a New York State appellate court has squarely held that a plaintiff may rely on CPLR 205(a)—the six-month “saving statute”—more than once in the same litigation chain. The decision arises from wrongful-death and medical-malpractice claims brought by Frank Tumminia (husband of the decedent, Joan Tumminia) against two health-care facilities: Staten Island University Hospital (“Hospital”) and Silver Lake Specialized Rehabilitation and Care Center, LLC (“Nursing Home”).

The procedural history is labyrinthine: the plaintiff commenced three successive actions, each time before receiving letters testamentary; each prior action was dismissed for lack of capacity. The Supreme Court (Richmond County) dismissed the third action with prejudice, accepting the defendants’ argument—based on the Second Circuit’s Ray v. Ray—that CPLR 205(a) grants only a single six-month reprieve. On appeal, the Appellate Division, Second Department, agreed that dismissal was required for lack of capacity, but modified the judgments to make the dismissals without prejudice, expressly rejecting Ray and holding that CPLR 205(a) can be invoked repeatedly so long as the statutory text is otherwise satisfied.

2. Summary of the Judgment

• Lack of capacity: Because Mr. Tumminia still lacked letters of administration, dismissal was proper under CPLR 3211(a)(3) and EPTL 5-4.1.
• Scope of CPLR 205(a): The court ruled that the statute’s text permits a new action filed within six months of a prior non-merits dismissal even if that prior action had itself relied on CPLR 205(a) for timeliness.
• Result: Dismissals converted from “with prejudice” to “without prejudice.” The plaintiff may re-commence once letters are issued, provided he does so within six months of the latest dismissal.
• Costs: One bill of costs awarded to plaintiff as prevailing appellant on the prejudice issue.

3. Analysis

3.1 Precedents Cited

• Carrick v. Central General Hospital, 51 NY2d 242 (1980) – Established that a personal-injury and wrongful-death suit dismissed for lack of an appointed representative may be re-filed within six months under CPLR 205(a) after letters issue. Tumminia extends Carrick by confirming the savings provision can be used again if the second action also fails for capacity.
• Ray v. Ray, 22 F4th 69 (2d Cir. 2022) – Federal decision holding CPLR 205(a) affords only one extension. Tumminia expressly “respectfully disagrees,” noting federal precedent is non-binding on New York courts.
• Multiple Appellate Division cases on capacity (Shelley v. South Shore Healthcare, Ambroise v. UPS, etc.) cited to confirm dismissal ground.
• Foreclosure Abuse Prevention Act (FAPA) – Legislature created CPLR 205-a for foreclosure actions and explicitly capped it at one six-month extension. The Tumminia panel reasons that the absence of a similar cap in § 205(a) shows legislative intent to allow multiple uses in non-foreclosure contexts.

3.2 Legal Reasoning

1. Plain-language approach. The court zeros in on the clause: “provided that the new action would have been timely commenced at the time of commencement of the prior action.” Because each preceding action is deemed “timely” once CPLR 205(a) attaches, any subsequent action filed within six months likewise satisfies this proviso. The Second Department sees no textual bar to successive applications.
2. Legislative comparison with CPLR 205-a. By enacting a new section for mortgage-foreclosure cases with a single-extension ceiling while leaving CPLR 205(a) unchanged, the Legislature signalled that § 205(a) continues to permit more than one six-month window.
3. Policy considerations. Estate representatives often depend on Surrogate’s Court timing, which may exceed six months despite diligent efforts. Precluding additional savings periods could work “grave inequity,” especially where causes of action have short limitation periods (e.g., GML § 50-i claims).
4. Distinguishing Ray. The federal cases concerned Rule 12 dismissals for failure to state a claim—suggesting plaintiff culpability—whereas Tumminia involves a procedural incapacity potentially outside plaintiff’s control. Even if Ray had persuasive value, its policy rationale doesn’t translate neatly to Surrogate-Court-delay scenarios.

3.3 Expected Impact

• Estate litigation: Personal-injury and wrongful-death plaintiffs awaiting letters now have clearer assurance that their claims will not be extinguished merely because Surrogate’s Court delay exceeds a single six-month cushion.
• Procedural strategy: Practitioners may safely recommence suits after a CPLR 205(a) dismissal without fear that a second filing will be time-barred per se. However, each new action must still be initiated and served within six months of termination.
• Forum choice: Federal courts sitting in diversity must apply Tumminia when predicting New York law; disparity between Second Circuit and state authority is now resolved authoritatively for cases within the Second Department and, by persuasive force, statewide unless and until the Court of Appeals decides differently.
• Legislative response: If multiple extensions become perceived as abusive, Albany may revisit CPLR 205(a) to impose a numeric cap, mirroring § 205-a.

4. Complex Concepts Simplified

CPLR 205(a) – “Saving Statute”

Allows a plaintiff whose timely lawsuit ends in a non-merits dismissal (e.g., wrong party, lack of capacity, personal-jurisdiction defect) to start a new, identical action within six months even if the limitations period has expired.

Letters Testamentary / Letters of Administration

Official documents issued by Surrogate’s Court appointing someone as the legal representative of a decedent’s estate, conferring capacity to sue or be sued on the estate’s behalf.

Dismissal “with prejudice” vs “without prejudice”

With prejudice = case permanently closed; claims cannot be re-filed. Without prejudice = procedural dismissal; plaintiff may recommence.

Capacity to Sue

Legal authority of a party to maintain an action. An individual lacking letters does not have capacity to represent a decedent’s estate.

Foreclosure Abuse Prevention Act (FAPA)

2022 statute addressing serial mortgage-foreclosure filings; introduced CPLR 205-a with a single six-month extension limitation.

5. Conclusion

Tumminia v. Staten Island University Hospital establishes a significant new precedent: the six-month revival window of CPLR 205(a) is not a one-time privilege but may be invoked successively, provided each new action meets the statute’s textual prerequisites. By rejecting the Second Circuit’s contrary reading in Ray v. Ray, the Second Department affirms New York’s commitment to deciding cases on their merits where possible, especially in contexts—like estate litigation—where procedural impediments can derail timely claims through no fault of the injured parties. Unless the Court of Appeals or the Legislature intervenes, Tumminia will guide practitioners, trial courts, and federal courts applying New York law whenever serial CPLR 205(a) filings are at issue.