Opinion
December 14, 1992
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
Contrary to the respondent's contention, the dismissal by the United States District Court for the Eastern District of New York of the plaintiff's pendent State claims, without prejudice, pursuant to Federal Rule of Civil Procedure, rule 41 (a) (2), was not equivalent to a voluntary discontinuance under CPLR 205 (a). Therefore, the plaintiff was entitled to commence this action in State court within six months after the Federal action was terminated (see, Censor v Mead Reins. Corp., 176 A.D.2d 600).
Further, we find that this action was timely commenced. The Federal action was terminated on December 19, 1989. Although the court had orally announced its decision to dismiss the case on September 15, 1989, it was not until December 19, 1989, that the court issued an order dismissing the case. Thus, the commencement of this action on May 3, 1990, by personal service on the respondent, was timely (see, Fed Rules Civ Proc, rule 58; CPLR 2219; Carter v Castle Elec. Contr. Co., 23 A.D.2d 768). Mangano, P.J., Bracken, Sullivan and O'Brien, JJ., concur.