CPLR § 2001 Mistakes, omissions, defects, and irregularities
Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)
The bill that amended CPLR 2001 was introduced at the request of the Chief Administrative Judge upon the recommendation of the Advisory Committee on Civil Practice. Its purpose was to allow 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 (see L 2007, ch 529). The Introducer's Memorandum states that the bill was offered in response to our decisions in Harris, Matter of Fry v Village of Tarrytown (89 NY2d 714 ) and Matter of Gershel v Porr (89 NY2d 327 ) (see Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 529, at 5). Gershel and Harris both involved failure to pay the proper filing fee; in Fry, the plaintiff did not file a signed copy of an order to show cause along with his petition [FN3]. In each of these cases the correct initiatory papers were filed. As the Introducer's Memorandum emphasizes, the amendments to
section 2001 were not meant to
"excuse a complete failure to file within the statute of limitations. Moreover, in order to properly commence an action, a plaintiff or petitioner would still have to actually file a summons and complaint or a petition. A bare summons, for example, would not constitute a filing. The purpose of this measure is to clarify that a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED, is a mistake subject to correction in the court's discretion" (id. at 5-6 [capitalization in original] [emphasis added]).
Here, plaintiff never filed a summons and complaint. 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 this action. 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.[FN4]