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01/19/88 Bernard Gendek, v. Jehangir M. Jehangir

January 19, 1988

BERNARD GENDEK, APPELLANT

v.

JEHANGIR M. JEHANGIR, M.D., APPELLEE. -- JOHN E. SYLVESTER, APPELLANT,

v.

ROBERT STEINBERG, APPELLEE



SUPREME COURT OF ILLINOIS

518 N.E.2d 1051, 119 Ill. 2d 338, 116 Ill. Dec. 230 1988.IL.39

No. 64870. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John J. Nelligan, Judge, presiding. No. 65054. -- Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Luther H. Dearborn, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

These consolidated causes raise a common question of whether or not a particular statutory provision, section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-217), permits a plaintiff to file more than one action within one year after the original action has been dismissed (voluntarily or for want of prosecution).

In the first of the consolidated causes, No. 64870, plaintiff, Bernard Gendek, filed a medical malpractice action against defendant, Jehangir M. Jehangir, M.D., in Federal court in Indiana on December 13, 1983, eight days before the expiration of the statute of limitations. On February 22, 1984, Gendek filed a motion for a voluntary dismissal. The motion was granted on a stipulation by the parties.

On March 9, 1984, Gendek filed the same action in Federal court in Illinois. On March 24, 1984, Gendek's motion to dismiss without prejudice for lack of subject matter jurisdiction was granted.

Within one year of the second dismissal, Gendek filed this present action in State court. The circuit court, on motion of defendant, dismissed this action with prejudice. The judgment of the circuit court was affirmed by the appellate court. (151 Ill. App. 3d 1028.) We allowed Gendek's petition for leave to appeal (107 Ill. 2d R. 315).

In the second of the consolidated causes, No. 65054, plaintiff, John E. Sylvester, filed a personal injury suit in 1979 against defendant, Robert Steinberg, arising out of an automobile accident of September 26, 1977.

On February 22, 1984, Sylvester moved for a voluntary dismissal without prejudice. The motion was granted. On the same day, Sylvester refiled the same action. On April 4, 1986, he filed his second motion for a voluntary dismissal, which was granted. On May 12, 1986, he filed a new action. Defendant filed a motion to dismiss with prejudice. The motion was granted. The judgment of the circuit court was affirmed. (152 Ill. App. 3d 962.) This court granted leave to appeal (107 Ill. 2d R. 315), and consolidated the two causes.

Is a plaintiff who takes a voluntary dismissal of his original action entitled to only one refiling within a year? This court has not previously discussed this precise issue.

Section 13 -- 217 provides:

"ยง 13-217. Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act ...


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