Justice Thomas Feinman
Delmonaco moved for summary judgment against MTA Long Island Rail Road (MTA LIRR) for $243,750 on the ground that MTA LIRR was in default. MTA LIRR moved to dismiss Delmonaco's complaint arguing plaintiff failed to state a cause of action against defendant as plaintiff was time-barred from instituting this action. Delmonaco filed a prior action against the MTA, in which he sought damages for the destruction of trees on his property, and now against MTA LIRR. The court dismissed the prior action. Delmonaco now sought to invoke the tolling benefit of CPLR 205(a) permitting the commencement of a new action within six months after termination of a timely commenced action. Yet, the court noted the prior action was commenced against MTA, while this one was commenced against MTA LIRR, two different entities. Thus, it found Delmonaco was unable to demonstrate the original dismissing court had jurisdiction over the new defendant in this action. Hence, the court stated the six month extension was unavailable to Delmonaco here, granting MTA LIRR's motion to dismiss Delmonaco's action against defendant.
