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July 26, 2011

Failure to File Summons is Not Correctable Irregularity Under CPLR 2001

The New York Court of Appeals' March 24, 2011 decision in Goldenberg v. Westchester County Health Care Corporation, 16 N.Y.3d 323 (2011) underscores the high cost of failing to file the proper initiatory papers when commencing a lawsuit.

On May 25, 2007, Plaintiff Arthur Goldenberg commenced a special proceeding to file a late notice of claim for medical malpractice against Defendant Westchester County Health Care Corporation. Attached as an exhibit to Plaintiff's petition was a proposed complaint. On September 25, 2007, the Court granted Plaintiff's petition, permitting Plaintiff twenty days to serve a notice of claim.

On October 9, 2007, Plaintiff served Defendant with a notice of claim as well as a summons and complaint, neither of which referenced an index number. The newly served complaint differed materially from the proposed complaint used as an exhibit in the special proceeding. Two days later, Plaintiff filed affidavits of service which displayed the index number from the special proceeding, demonstrating that Plaintiff failed to purchase an index number and file the summons and complaint with the County Clerk as required by the CPLR.

Notwithstanding Plaintiff's procedural defect, Defendant timely answered and included statute of limitations and lack of personal jurisdiction as affirmative defenses. The statute of limitations subsequently expired and Defendant moved to dismiss Plaintiff's action as untimely. Plaintiff cross-moved for an order allowing Plaintiff to file the summons and complaint.

The Appellate Division, Second Department, and eventually the Court of Appeals, had to decide whether the trial court had the discretion to forgive Plaintiff's mistake. The Courts unanimously denied Plaintiff's cross-motion and granted Defendant's motion to dismiss on the grounds that: (1) the proposed complaint (previously filed in the special proceeding) did not materially conform to the subsequent erroneously-filed complaint served on Defendant; and(2) the Plaintiff never timely filed a summons with the complaint, and such absence was a complete failure to file within the appropriate statute of limitations.

The Court of Appeals discussed in detail the purpose of CPLR § 2001, which allows:

At any stage of an action, including the filing of a summons with notice, and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded"¦

The Court concluded that CPLR § 2001 gives trial courts discretion to excuse a mistake where there has been a mistake in the method of filing, i.e. incorrectly filing a summons and complaint with the Supreme Court Clerk as opposed to the County Clerk. However, CPLR § 2001 does not allow trial courts to disregard a failure to file the correct initiatory papers within the statute of limitations.

This case provides yet one more example of the dangers of improperly commencing an action. Further, it serves as a reminder to all practitioners that trial courts are allowed to excuse a plaintiff's mistakes in the method of filing such as improperly filing with the Supreme Court Clerk and the payment of incorrect filing fees. However, it is not within the discretion of trial courts to excuse the filing of improper initiatory papers.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Practice Area.

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