CPLR 205 Does Not Allow Trustee to Commence a New Action After an Earlier Action on Behalf of the Trust Impermissibly Was Brought by a Certificateholder

On June 16, 2022, the Court of Appeals issued a decision in ACE Sec. Corp. v. DB Structured Prods., Inc., 2022 NY Slip Op 03927, holding that CPLR 205 does not allow an RMBS trustee to commence a new action after an earlier action impermissibly brought on behalf of the trust by a certificateholder was dismissed, explaining:

Commonly known as the “savings statute,” CPLR 205 (a) provides that,

if an 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, 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 . . . 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 . . .

The effect of the statute is quite simple: if a timely brought action has been terminated for any reason other than one specified in the statute, the plaintiff may commence another action based on the same transactions or occurrences within six months of the dismissal of the first action and obtain the benefit of the prior timely filing for statute of limitations purposes.

. . .

HSBC’s argument in favor of applying CPLR 205 (a) cannot be reconciled with the text of the savings statute, the public policy underlying the provision, or our precedent. We have long recognized that the benefit provided by CPLR 205 (a) is explicitly, and exclusively, bestowed on the plaintiff who prosecuted the initial action except in the limited scenario where the plaintiff dies, the cause of action survives, and an administrator or executor of the deceased plaintiff’s estate seeks to commence a new action based on the same occurrence. That is, the savings statute applies only where the second action is brought by the same plaintiff or an estate representative.

Construing the term “the plaintiff” in CPLR 205 (a) to authorize commencement of a new action by any entity seeking to pursue the same rights as the prior plaintiff—as HSBC urges us to do—would render the statutory language permitting commencement of new actions by administrators and executors superfluous. An estate representative raising a claim on behalf of a deceased plaintiff is generally, as a matter of course, seeking to vindicate the rights of the original and now-deceased plaintiff. Had the legislature intended the statutory reference to “the plaintiff” to impliedly and broadly allow any entity seeking to vindicate the same rights as the original plaintiff or any entity claiming to represent the same real party in interest to benefit from CPLR 205(a), there would be no need for the statute to specifically bestow such benefit on executors and administrators. Yet, for over a century, an entity different than the original plaintiff has been permitted to rely on the savings statute to commence a subsequent action only in the circumscribed context of a deceased plaintiff’s estate.

Where, as here, the legislature has created one statutory exception—executors and administrators—to the general rule that the second action must be commenced by the original plaintiff, we must infer that the legislature did not intend CPLR 205 (a) to broadly apply to any party that seeks to vindicate the same rights. When the legislature intends to extend benefits to other entities that may have interests similar or identical to those of a plaintiff or defendant it has typically said so. The absence of any language in CPLR 205 (a) extending its reach beyond the original plaintiff or an estate representative, coupled with the precise recognition of a single exception, must be considered meaningful and intentional as the failure of the legislature to include a term in a statute is a significant indication that its exclusion was intended.

. . .

HSBC is not “the plaintiff” in the prior action and the benefit of CPLR 205 (a) is unavailable to save its untimely complaint. Contrary to HSBC’s contention, this conclusion is consistent with the public policy underpinning the savings statute. CPLR 205 (a) is a remedial statute that, like its predecessors, is designed to insure to the diligent suitor an opportunity to have a claim heard on the merits when the suitor has initiated a suit in time but the claim was dismissed on some technical, non-merits-based ground. While the savings statute undoubtedly has a broad and liberal purpose to ameliorate the potentially harsh effect of the statute of limitations, the important consideration is that, by invoking judicial aid in the first action, a litigant gives timely notice to the adversary of a present purpose to maintain its rights before the courts. 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.

(Internal quotations and citations omitted).

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