Justice Thomas Dickerson
Marrero’s March 2005 action sought damages for injuries sustained during a Feb. 7, 2003, fall on ice outside the Crystal Nail’s defendants’ business, operated in a building owned and maintained by the Spencer defendants. Supreme court dismissed suit in November 2007. In June 2009 it denied Marrero’s vacatur motion seeking her action’s restoration. Second Department affirmed, deeming Marrero’s action not diligently prosecuted. On Feb. 8, 2012, district court dismissed both defendants—pursuant to CPLR 3211(a)(5)—from Marrero’s April 2011 negligence action, deeming her claims time barred. Second Department’s characterization of Marrero’s conduct—including a general pattern of delay in proceeding with litigation—warranted a conclusion that her 2005 suit was dismissed for neglect to prosecute. Second Department held supreme court properly dismissed Marrero’s complaint as untimely under 3211(a)(5). Nor could Marrero use CPLR 205(a)’s savings provision to provide six months—from exhaustion of appeals of right—within which to recommence action. The 2008 amendment adding the relevant language to CPLR 205(a) did not exist when Marrero’s prior action was dismissed in 2007, and was to be applied prospectively, not retroactively.
