The statute of limitations is not tolled, however, if the action is terminated because of a voluntary discontinuance, a failure to obtain jurisdiction over the defendant, a dismissal of the complaint "for neglect to prosecute the action," or a final judgment on the merits.
In Doyle v. American Home Products Corp., a plaintiff, after suffering a dismissal in 2006 of his action in Supreme Court, Kings County, then filed a diversity action making the same claims in the United States District Court for the Eastern District of New York. The District Court dismissed the federal action on the grounds that the statute of limitations was not tolled under § 205(a).
The United States Court of Appeals for the Second Circuit affirmed today, concluding that while the state judge had not explicitly stated the action was dismissed for neglect to prosecute, the record as a whole showed that the plaintiff had not "diligently" prosecuted his action and, therefore, he was not entitled to the tolling provisions under § 205(a). The Second Circuit opinion collects the New York case law regarding § 205(a) and is a very useful discussion of the tolling provisions. The opinion can be found here.
It should be noted that on July 7, 2008, § 205(a) was amended so that today a state judge who dismisses an action for neglect to prosecute, "shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."