On October 18, 2022, the First Department issued a decision in U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 2022 NY Slip Op. 05819, holding that CPLR 205(a) relation back does not apply to claims that were voluntarily dismissed, explaining:
Plaintiff’s motion was properly denied because CPLR 205(a) does not apply to actions that were voluntarily discontinued, which is precisely what plaintiff seeks to do here. The prior appeal did not result in the dismissal of the subject claims, as plaintiff implicitly concedes by its motion to discontinue. Plaintiff instead argues that it was compelled to discontinue the 480 loan claims in order to cure the fatal procedural defect occasioned by the change in law represented by that decision. The Court of Appeals has cautioned against inquiring into the reason behind a facially voluntary discontinuance in this way. At any rate, here, the claimed procedural defect — the failure to send pre-suit notices — was not actually fatal, as plaintiff can still prevail if it proves that defendant independently discovered the breaches, notwithstanding that such proof may be time-consuming or costly to gather.
(Internal citations omitted).