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Summons the Summons – Or Else

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  • Posted on: Oct 6 2023

By Jonathan H. Freiberger

This Blog frequently addresses complex substantive and procedural issues.  Today, however, we return to basics.  In New York, an “action is commenced by the filing of a summons and complaint or a summons with notice in accordance with rule twenty-one hundred two” of the CPLR.  CPLR 304(a).  “Filing” means “the delivery of the summons with notice [or] summons and complaint … to the clerk of the court in the county in which the action … is brought ….”  CPLR 304(c).  The filing of a summons is necessary to invoke the jurisdiction of the court.  Wesco Ins. Co. v. Vinson, 137 A.D.3d 1114, 1115 (2nd Dep’t 2016); Ghiazza v. Anchorage Mirina, Inc., 210 A.D.3d 1328, 1329 (3rd Dep’t 2022).  “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.”  Ghiazza, 210 A.D.3d at 1329 (citations and internal quotation marks omitted).

The CPLR also provides that a court can dismiss an action, without prejudice, if, inter alia, a summons and complaint are not served on the defendant within 120 days “of the commencement of the action.”  CPLR 306-b.  Similarly, a notice of pendency is “effective only if, within thirty days after filing, a summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed.”  CPLR 6512.  Also, a notice of pendency is subject to “mandatory cancellation” if “service of a summons has not been completed within the time limited by section 6512….”  CPLR 6514.

The failure of the plaintiff to file a summons was an issue decided on October 4, 2023, by the Appellate Division, Second Department, in Park Premium Enterprises v. Norben Lofts, LLC.  [Eds. Note: some of the facts recited herein were obtained from the court file available on the NYSCEF system.]  The plaintiff in Park was a general contractor hired by the defendant to convert a commercial building into residential apartments.  The plaintiff alleged that it performed under the parties’ contract but was never paid.  The plaintiff filed a mechanic’s lien against the property and, subsequently, filed a complaint and a notice of pendency.  [This blog has discussed mechanic’s liens [here], [here], [here] and [here] and notices of pendency [here] and [here].]

The defendant moved to, inter alia, dismiss the complaint pursuant to CPLR 3211(a) due to the plaintiff’s failure to file a summons, and to vacate the notice of pendency for failure to comply with CPLR 6511 and 6512.  The Plaintiff filed a summons seven months after filing its complaint and over one month after the defendant filed its motion to dismiss.  The plaintiff opposed the motion by arguing, inter alia, that the Governor’s COVID related executive orders tolled the time in which the plaintiff had to commence the action.  The motion court granted the defendant’s motion and the plaintiff appealed.

The Second Department affirmed, holding that the supreme court was without jurisdiction, and the action was a “nullity,” due to the plaintiff’s failure to file a summons.  The Court rejected plaintiff’s COVID related arguments.  Thus, the Court held that:

The contention of [the plaintiff] that the time in which to commence an action was tolled by a series of executive orders issued by Governor Andrew Cuomo is misplaced, as no time period is at issue. Rather, in order to commence an action, [the plaintiff] was required to file a summons and complaint, and the failure to do so warranted dismissal of the complaint.  [Citation omitted.]

The Court also rejected the plaintiff’s argument that “the failure to file a summons should have been disregarded pursuant to CPLR 2001,” which allows a court, under certain circumstances, to permit the correction of “a mistake, omission, defect or irregularity including … [a] mistake in the filing process.”  In so doing, the Court stated:

The contention of [the plaintiff] that the failure to file a summons should have been disregarded pursuant to CPLR 2001 is improperly raised for the first time on appeal, and, in any event, without merit, as the complete failure to file the initial papers necessary to institute an action is not the type of error that falls within the court’s discretion to correct under CPLR 2001. The contention of [the plaintiff] that it filed a summons after submitting its opposition to the subject motion is based upon matter outside of the record on appeal and is not properly before this Court.  [Citations and internal quotation marks omitted.]

Finally, the Court canceled the notice of pendency due to the dismissal of the action pursuant to CPLR 6514(a).

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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