DENEHY v. ST. JOHN'S QUEENS HOSPITAL

Order affirmed, insofar as appealed from, with costs.

After having executed a stipulation of discontinuance of his appeal from a United States District Court Judge's dismissal of the action on the basis of lack of diversity jurisdiction, plaintiff reinstituted suit in State court. Appellant brought a motion to dismiss the complaint on the grounds, inter alia, of Statute of Limitations and res judicata.

The dismissal of the prior action by the Federal District Court for lack of subject matter jurisdiction does not require that the present action be dismissed on the ground of res judicata, or because the applicable Statute of Limitations has run, as long as the suit is reinstituted within six months of dismissal (CPLR 205 [a]; Smith v Rensselaer County, 52 A.D.2d 384). Furthermore, dismissal of an appeal pursuant to a stipulation of discontinuance of said appeal does not constitute a voluntary discontinuance of the underlying action within the meaning of CPLR 205 (a). Mangano, J.P., Brown, Rubin and Lawrence, JJ., concur.