that the action had been timely commenced pursuant to CPLR
205 (b). We affirm, but not based on CPLR 205 (b).
CPLR 205 (b) provides:
‘‘Defense or counterclaim. Where the defendant has
served an answer and the action is terminated in
any manner, and a new action upon the same trans-
action or occurrence or series of transactions or oc-
currences is commenced by the plaintiff or his suc-
cessor in interest, the assertion of any cause of
action or defense by the defendant in the new ac-
tion shall be timely if it was timely asserted in the
prior action.’’
Defendant’s counterclaim includes a cause of action for, in ef-
fect, personal injuries based on assault and battery, which was
GANDICA v SIBILIO [46 Misc 3d 85] 87
not filed within one year as required (see CPLR 215 [3]). We
find that defendant was not entitled to the benefit of the tolling
provision of CPLR 205 (b) on this cause of action since his
counterclaim had been voluntarily discontinued prior to the dis-
missal of the federal action and, thus, was never effectively
interposed within the meaning of CPLR 205 (b) (see Newman v
Newman, 245 AD2d 353, 354 [1997] [‘‘When an action is
discontinued, it is as if it had never been’’], citing Brown v
Cleveland Trust Co., 233 NY 399 [1922]; cf. CPLR 205 [a]
[providing a six-month recommencement period for actions
except for, among others, actions that were voluntarily discontin-
ued]).
However, CPLR 203 (d) provides, in pertinent part:
‘‘A defense or counterclaim is not barred if it was
not barred at the time the claims asserted in the
complaint were interposed, except that if the defense
or counterclaim arose from the transactions, occur-
rences, or series of transactions or occurrences, upon
which a claim asserted in the complaint depends, it