In In re Walter, 29 AD3d 598 (2d Dept. 2006), app. dism. 7 N.Y.3d 844 (2006). the respondent had moved to dismiss the petition as time-barred. The petitioner argued that the proceeding was timely pursuant to the tolling provisions of CPLR 205(a) because it was commenced less than six months after the discontinuance without prejudice of a timely prior federal action arising from the same series of transactions and occurrences. Id. at 599. The Second Department reversed the decision of the Surrogate Court, which had granted respondent's motion to dismiss the petition against him as time-barred based on its conclusion that CPLR 205(a) did not apply. Id. In so ruling, the Appellate Division held that "At the time of the discontinuance of the prior federal action, the parties sufficiently expressed their intent that the discontinuance was not on the merits, that it was without prejudice, and that consequently, the commencement of a new action within six months pursuant to CPLR 205(a) was permitted." Id. Thus, the key to establishing a toll under CPLR 205 is that the parties "sufficiently expressed their intent" that the prior action was not discontinued on the merits.