Q: If my case is dismissed in a summary judgment can I use the savings statue CPLR 205A.
My case has two defendants. My case was dismissed because the Judge stated I did not state a cause of action.
The second defendant's case was dismissed on a summary judgment. Can I bring them both back under the
Savings Statue, CPLR 205A? Or can I bring them back again period? Also, the judge gave me the cost and disbursements
that I need to pay to both parties; however, I have been since inception on a fee waiver and have also appealed on
a fee waiver. Can an appeal overturn that decision? In addition, can't I file bankruptcy if either side proceeds with collecting?
A:
While CPLR 205-a may apply strictly to extend the statute of limitations (if you are past it), it does not get around res judicata, which is a doctrine that bars re-litigation of matters that have already been decided.
You would also have to look at the order dismissing the case to see if it was with or without prejudice (the latter meaning without prejudice to the filing of another case). You may be able to appeal provided you file a timely notice of appeal.
Because costs have already been awarded against you, I would proceed with caution in filing the same suit that has been dismissed already; you do not want to get hit with any form of sanctions. In that vein, I would suggest you seek counsel to preserve your rights.
Peter J. Weinman and Steven Warren Smollens agree with this answer
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