What Is the Difference Between the Provisions of CPLR 203 and CPLR 205 ?
In Carrick v. Central Gen. Hosp. (51 NY2d 242 ) the Court examined the interplay between EPTL 5-4.1 and CPLR 205 (a).
That plaintiff had commenced a wrongful death action before an administratrix was appointed.
Finding that the appointment of the administratrix was a necessary precondition before the action could be commenced, the first action was dismissed.
The defendant sought to dismiss the second action based on the Statute of Limitations which had expired between the dates the two actions were commenced.
The defendant contended there was no timely commencement of the first action.
That Court held:
'While the relation-back provisions of CPLR 203 are dependent on the existence of a valid pre-existing action, CPLR 205 (subd [a]) was created to serve in those cases in which the prior action was defective and so had to be dismissed' ( George v. Mt. Sinai Hosp., [47 NY2d 170], at pp 179-180)." (Carrick v. Central Gen. Hosp., supra, at 248-249.)