All is not forgiven - the application of CPLR 2001 to Mendon Ponds defects.

• Author: McGowan, Peter
• Position: New York Civil Practice Law and Rules

1. INTRODUCTION

   The purpose of this article is to review the courts' application of CPLR 2001, as amended, in the context of commencement time errors, which may occur when filing an action or when serving process. CPLR 2001, entitled "[m]istakes, omissions, defects and irregularities" (1) is also known as the "Forgiveness Statute" (2) since it allows a court to correct or ignore various types of procedural errors that may occur throughout the litigation. (3) It provides in relevant part:

   At any stage of an action, including the filing of a summons with notice, summons 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, provided that any applicable fees shall be paid. (4) The aim of the legislature in granting the court the power of forgiveness over certain procedural missteps was to prevent otherwise valid causes of action from being dismissed on technical, nonprejudicial grounds, thereby ensuring that such actions could proceed to a final resolution on the merits. (5)

   Notably, prior to the 2007 amendment, CPLR 2001 provided authority for the court to correct nonprejudicial errors at any time during an action except for those errors occurring at the time of commencement. (6) These commencement time defects are now known as "Mendon Ponds" defects and are so named after a well-known 2002 Court of Appeals case. (7) The result was that cases were dismissed on technicalities under the theory that such defects impacted the court's subject matter jurisdiction. (8) Because of this, the New York State Legislature saw fit to amend the statute in 2007 to address these nonprejudicial commencement time errors. (9)

   Interestingly, despite the 2007 amendment to CPLR 2001, Mendon Ponds-type defects can still result in the dismissal of otherwise meritorious cases due to errors at the commencement stage of an action. (10) Since Mendon Ponds defects deprive the court of subject matter jurisdiction, it is critical that practitioners understand the scenarios in which the Forgiveness Statute does not apply. (11) In order to fully understand when CPLR 2001 will forgive a commencement time error, a basic understanding of the statutes governing the commencement process is important.

2. NO NEED FOR FORGIVENESS--PROPERLY FOLLOWING THE STATUTORY ROADMAP WHEN COMMENCING AN ACTION.

   CPLR 2001 as amended now mandates the correction of any nonprejudicial errors that may occur during the commencement of an action. (12) Despite this statutory language of forgiveness, it is still critical that a plaintiff commencing an action undertake the correct steps when filing their initial papers, whether it is a summons and complaint, a summons with notice, or a petition, since mistakes in the filing process may be deemed jurisdictional in nature and subject the case to dismissal. (13) In order to properly commence an action one must first be familiar with the directives set out in CPLR 304 (14) and CPLR 2102. (15) In addition to properly commencing an action, the plaintiff must also serve a defendant pursuant to Article 3 of the CPLR, which covers jurisdiction. (16)

   Beginning with CPLR 304, the plaintiff must file a summons and complaint, summons with notice, or a petition in accordance with CPLR 2102. (17) In addition to filing with a clerk in the courthouse, a plaintiff can also file an action by "facsimile transmission" or through "electronic means." (18) Once filed, the papers are date stamped by the clerk of court and assigned an index number. (19) The statute further requires that a fee shall be paid or "[s]uch filing shall not be accepted." (20) In addition to knowing what to file, the plaintiff also needs to know where to file and with whom. (21) Looking to CPLR 2102, the plaintiff is directed to file "with the clerk of the court in which the action is triable." (22) Once the clerk of the court is located, the plaintiff is deemed to have properly filed the papers as long as they are filed in "accordance with the rules of the chief administrator or any local rule or practice established by the court." (23) CPLR section 2102 further states that "[a] clerk shall not refuse to accept for filing any paper presented for that purpose ... " (24)

   Read together, CPLR sections 304 and 2102 seem to provide a simple road map for a plaintiff to follow when filing an action. The steps are simple--prior to the expiration of the statute of limitations, the plaintiff simply takes the commencement papers to a "clerk" in the courthouse and pays the requisite filing fee, thereby commencing the action. (25) Subsequent to filing the initial papers, the plaintiff must then obtain jurisdiction over the defendant. (26) CPLR sections 301 and 302 outline the basis for obtaining jurisdiction, (27) while service is addressed in CPLR sections 307 through 316. (28) In the broadest sense, service of process is accomplished by properly serving a summons with a complaint or notice upon the defendant within or without the state.

   It certainly benefits the practitioner to be familiar with the statutory provisions discussed above. A defendant can raise an objection to an error made by the plaintiff at either the commencement stage or when serving process and may seek to have the case dismissed on jurisdictional grounds. As a plaintiff, one can either avoid missteps at this critical juncture or in the event such an error does occur, move pursuant to CPLR 2001 to have the case reinstated for resolution on the merits. Despite this apparently simple filing process and a generous forgiveness statute, the case law will show that numerous valid causes of action still somehow manage to fall into a Mendon Ponds trap at the commencement stage, resulting in a dismissal on jurisdictional grounds.

3. PRE-FORGIVENESS--THE BACKGROUND OF THE 2007 AMENDMENT TO CPLR 2001.

   In 2007, after a series of Court of Appeals cases resulting in outright dismissals of otherwise meritorious causes of action, the New York State Legislature amended CPLR section 2001. (29) The stated purpose was "to amend the civil practice law and rules, in relation to the correction of harmless errors in the commencement of an action." (30) The legislative history reveals that such defects must be "harmless errors in the commencement of an action." (31)

   Prior to the amendment of CPLR section 2001, all types of commencement errors were deemed jurisdictional defects and dismissed outright. (32) Still, notwithstanding its charitable language and the intent of the legislature, CPLR section 2001, as currently interpreted through case law, is not able to cure each and every mistake, omission, defect, and irregularity at any stage of the litigation. (33) This is especially true of certain mistakes made in the filing process at the commencement of an action as well as when serving process, both of which will be discussed in Part IV.

   Specifically, the amendment was offered in response to three cases which held that defects in both the commencement of an action or the payment of an index number fee will result in the outright dismissal of the action so long as a timely objection is made. Harris v. Niagara Falls Board of Education, (34) Gershel v. Porr, (35) and Fry v. Village of Tarrytown (36)--each of these cases cited in the Sponsors' Memorandum (37)--involved special proceedings where an application was made to the court prior to commencing an action and the plaintiff or petitioner had already paid a fee, had an index number assigned by the court, and a return date calendared. (38)

   In Harris, the Court of Appeals upheld the Appellate Division's dismissal of the action because the plaintiff failed to comply with the commencement-by-filing system when he used the index number from his prior special proceeding. (39) Notably, the Court of Appeals confirmed "that a defect in compliance with the commencement-by-filing system does not deprive a court of subject matter jurisdiction and, accordingly, is waived absent a timely objection by the responding party." (40) Since the defendant in Harris timely objected to the plaintiffs defective filing, the "action was subject to dismissal." (41)

   In Gershel v. Porr, the issue on appeal was whether the petitioner had satisfied the requirements of New York's commencement-by-filing system governing a special proceeding. (42) In Gershel, the petitioner withdrew an order to show cause he had originally filed and then attempted to commence his action using the same index number by serving a notice of petition without filing a new set of papers or paying another filing fee. (43) The petitioner's failure to obtain a new index number and start again doomed the case despite the fact that the respondent was not prejudiced. (44) The Court of Appeals held that the "petitioner never properly commenced the special proceeding and the attempted service was a nullity." (45) Manifestly, the Court of Appeals held fast to the "statutorily prescribed sequence," which must be followed when commencing a special proceeding, and further insisted, "that the papers served must conform ... to the papers filed." (46)

   Finally, in Fry v. Village of Tarrytown, the petitioner had failed to comply with the CPLR. (47) After paying the filing fee, he filed only the unexecuted order to show cause and petition with the clerk of the court, never filing a signed copy of the order. (48) Interestingly enough, the filing procedure followed in Fry was in accordance with the court's own practices. (49) The Court of Appeals determined that the trial court had improperly dismissed the proceeding sua sponte because the respondents had waived any objection to the defective filing by appearing in the proceeding...