New York's Highest Court Holds That Plaintiff's Failure To Commence The Suit Within The Applicable Statute Of Limitations Period Cannot Be Forgiven By The Courts
October, 2011
The New York Court of Appeals recently determined in Goldenberg v. Westchester County Health Care Corporation, et al., 16 N.Y. 3d 323, 946 N.E. 2d 717, 921 N.Y.S. 2d 619 (2011), that a plaintiff's failure to serve and file the Summons and Complaint within the applicable statute of limitations period was not an error that the trial courts have the discretion to forgive pursuant to statute. Specifically, the Court determined that the trial court was not vested with the discretion to forgive a plaintiff's complete failure to commence an action within the applicable statute of limitations period.
Plaintiff commenced a special proceeding to file a late notice of claim for medical malpractice against Defendant Westchester County Health Care Corporation. Annexed to Plaintiff's petition was a copy of a proposed Complaint against Defendant. The lower court granted Plaintiff's petition and directed Plaintiff to serve a Notice of Claim within twenty (20) days. Thereafter, Plaintiff served Defendant with a notice of claim together with a proposed Summons and Complaint, both without an index number. In short, Plaintiff did not purchase an index number and file the Summons and Complaint with the Court prior to serving Defendant, which he was required pursuant to statute to do. See CPLR § 304; see also CPLR § 305; CPLR § 306-a. Moreover, the Complaint served upon Defendant and eventually filed with the Court differed materially from the proposed Complaint previously served and filed together with Plaintiff's petition to file a late notice of claim against Defendant.
Defendant interposed an Answer to Plaintiff's Complaint which asserted the affirmative defense that Plaintiff failed to commence the action within the applicable statute of limitations period. Thereafter, after the two year and six month statute of limitations period had expired, Defendant served and filed a motion to dismiss Plaintiff's Complaint as untimely. Plaintiff served and filed a cross-motion to allow him to serve and file a Summons and Complaint beyond the applicable statute of limitations period. The trial court granted Defendant's motion and denied Plaintiff's cross-motion. The decision was later affirmed by the Appellate Court. New York's Highest Court, The Court of Appeals, ultimately upheld the lower courts' decisions.
The Court of Appeals determined that CPLR § 2001 permitted the trial courts to "fix or, where non-prejudicial, overlook defects in the filing process, including the failure to acquire or purchase an index number so long as the applicable fees were eventually paid." Id. However, the Court further advised that in this action, Plaintiff never filed a Summons and Complaint. The Court further noted that "the closest he came was the proposed complaint attached to the petition he filed when seeking permission to file a late notice of claim, itself a prerequisite to the commencement of the action." Id. Given the absence of a Summons, there was a "complete failure to file within the statute of limitations," which "CPLR § 2001 does not allow a trial judge to disregard." Id. The Court held that CPLR § 2001 only permits the trial court to forgive errors concerning the method of filing a pleading, not to forgive errors concerning what is actually filed. Accordingly, the Court upheld the lower courts' decisions dismissing Plaintiff's Complaint.
Learning Point: It is the burden of a plaintiff to make certain that the action is commenced within the applicable statute of limitations period. The mere service and filing of a notice of claim does not toll the statute of limitations. Rather, the statute of limitations is tolled only when an index number is purchased and a Summons and Complaint are filed with the court. While CPLR § 2001 allows the trial court to forgive errors made when serving and filing a Summons and Complaint, the statute does not empower the trial court to forgive a plaintiff's failure to commence an action within the applicable statute of limitations period.Back to New York CM Report of Recent Decisions (2011v3) 2011 Volume 3 Table of Contents
