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First: Read CPLR 304; Second: Insert Your Own First Step/Begin Your Journey Quote Here: _____________; and, Third: Read this Article.

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  • Posted on: Dec 16 2022

By Jonathan H. Freiberger

If you are too busy to play along after reading the title of today’s article, it is my pleasure to help you out.  

FIRST — CPLR 304, which explains how to commence an action or special proceeding, provides at subparagraph (a):

An action is commenced by filing a summons and complaint or summons with notice in accordance with rule twenty-one hundred two of this chapter.  A special proceeding is commenced by filing a petition in accordance with rule twenty-one hundred two of this chapter.  Where a court finds that circumstances prevent immediate filing, the signing of an order requiring the subsequent filing at a specific time and date not later than five days thereafter shall commence the action.

SECOND — Martin Luther King, Jr. once said: “You don’t have to see the whole staircase, just take the first step.”  Chinese philosopher Lao Tzu once said: “The journey of a thousand miles begins with one step.”  Blake Mycoskie, the founder of Tom’s shoes, once said: “The most important step of all is the first step. Start something.”  Jonathan Freiberger, 2020, 2021 and 2022 Super Lawyer™, frequently says: “Watch out for the first step – it’s a doozy.”

THIRD — Two recent Appellate Division cases illustrate the importance of taking a critical first step before taking steps two through whichever.

Ghiazza v. Anchorage Marina, Inc. (Third Department, November 23, 2022)

The plaintiff in Ghiazza performed work for his mother.  In consideration for the work, mother allegedly agreed to transfer title to her boat to plaintiff.  Mother’s attorney-in-fact, plaintiff’s brother, was allegedly “obligated to transfer the boat to plaintiff free of any encumbrances.”  After learning that defendant marina was going to sell the boat at auction to satisfy liens for unpaid storage charges, plaintiff purchased an index number and an RJI and filed an order to show cause – presumable to stop the sale and assert his interest in the boat.  There was no evidence, however, that plaintiff ever filed a summons or summons with notice.  After years (and yes, I did say years) of litigation, the action was dismissed for “failure to substitute a proper party after the death of [plaintiff’s mother, also a defendant in the action].”  Plaintiff’s subsequent efforts to “restore the purported action” to the court’s calendar were denied by the court – although not because of plaintiff’s failure to file a summons and complaint.  Plaintiff appealed.

On appeal, the Third Department, affirming on different grounds, stated:

Contrary to plaintiff’s contention that this purported action should not have been dismissed, an action is commenced by filing a summons and complaint or summons with notice in accordance with CPLR 2102 (CPLR 304 [a]). The failure to file the papers required to commence an action constitutes a nonwaivable, jurisdictional defect, and such a defect is not subject to correction under CPLR 2001. Here, although plaintiff purchased an index number and a request for judicial intervention, he never filed a summons with notice or summons and complaint. Under these circumstances, plaintiff’s failure to comply with CPLR 304 resulted in the purported action being a nullity and it was properly dismissed.  [Citations, internal quotation marks and brackets omitted.]

Siegel v. Eisner (First Department, December 6, 2022)

The petitioner in Siegel commenced a special proceeding seeking the dissolution of a foundation.  In the proceeding, respondent sought relief of her own by way of motion.  Supreme court denied the relief sought by both parties and issued a decision “in which [the court] denied the application for dissolution, and dismissed the petition, without prejudice to commencing a new proceeding ‘should deadlock in fact later arise after the parties attempt to resolve their issues with less drastic remedies’ than dissolution.”  

Thereafter, the respondent in the original proceeding filed an order to show cause in which equitable relief was sought.  The First Department affirmed the denial of the order to show cause and stated:

However, all civil proceedings must be in the form of an action or special proceeding (CPLR 103). Civil proceedings must be commenced by means of a petition or complaint (CPLR 304). Here, Eisner did not commence a new action or proceeding and her order to show cause did not seek to renew the earlier order dismissing the petition. Instead, it sought relief that had never been requested in the petition or answer. Since there was no proceeding actually before the motion court, it properly denied the order to show cause. The plaintiff in Ghiazza, and the respondent in Siegel, failed to take the required first steps to commencing an action or proceeding and, accordingly, were not entitled to the relief they sought.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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