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New York Appellate Court Permits Plaintiff to File Amended Complaint Pursuant to CPLR 304(a)

Thereafter, according to Plaintiff’s opposition papers, as time went by and no entry of appearance was received, Plaintiff was reticent to file a bite motion for default judgment her counsel personally went to Defendant’s Law Department, who verified that the complaint had been received but had not been assigned. According to Plaintiff’s opposition papers, her counsel was instructed to contact the Defendant’s Law Department in Bronx County and, after many phone calls we spoke directly to attorney B, Assistant Corporation Counsel. He admitted that the Summons and Complaint was in his computer system, but had not been assigned to an attorney. Subsequently, Plaintiff noted that Plaintiff’s first name was spelled incorrectly. Since an answer had neither been received from Defendant nor a request to extend the time to answer, Plaintiff filed an Amended Summons and Complaint on November 15, 2011 to reflect plaintiff’s first name correctly.

Defendant’s answer asserted fifteen affirmative defenses, however those germane to the instant motion are the following: (1) “The defendant(s) are not subject to the jurisdiction of this court, in that the summons does not bear the date it was filed with the clerk of the court; (2) “The action has not been commenced in compliance with CPLR section(s) 304, 306-a and/or section 400 of the CCA; (3) The action on behalf of the plaintiff(s) is barred by reason of the fact that it was not commenced within the time provided by the Statute of limitations; (4) This court lacks jurisdiction over the defendant(s) in that said defendant(s) were not personally served with the summons; (5) “Plaintiff fails to comply with section 3017 of the CPLR.”

On December 27, 2011 the instant motion was made, using the same index number as Plaintiff on her motion to amend the Notice of Claim.

Applicable Law and Analysis

CPLR 304(a) states in pertinent part that 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. In the case at bar, there is no question that Plaintiff filed the original summons and complaint on August 3, 2011. General Municipal Law ยง 50-i.(l) (c) states in pertinent part that “No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, unless the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.”

CPLR 305(a) states in pertinent part that a summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff’s address, and also shall bear the index number assigned and the date of filing with the clerk of the court.

CPLR 306-a states in pertinent part that upon filing the summons and complaint, summons with notice or petition in an action or proceeding commenced in supreme or county court with the clerk of the county, an index number shall be assigned and the fee required by subdivision (a) of section eight thousand eighteen of this chapter shall be paid.

In the case at bar, Plaintiff served her initial summons and complaint on August 2nd, 2011 with the index number assigned to her motion to amend the Notice of Claim. She thereafter filed the pleadings on August 3rd, 2011. Plaintiff did not purchase a new index number for her summons and complaint prior to serving Defendant, as she should have.

The question before the Court is whether CPLR 2001 vests the Court with discretion to forgive the mistake that plaintiff made, namely filing the original dog bite summons and complaint without a new index number. This Court believes it does.

CPLR 2001 was amended by the legislature in 2007 and provides:

“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.”

Here, Plaintiff filed the original dog bite summons and compliant on August 3rd, 2011, therefore the action was timely commenced. In addition, Plaintiff’s counsel affirms that he contacted Defendant’s Law Department in Bronx County who confirmed receipt of the pleadings, but stated that the matter was not yet assigned to an attorney. In its reply, Defendant does not deny this fact. Defendant also does not present evidence of any prejudice. In light of the foregoing, Defendant’s motion is denied.

Accordingly, Plaintiff is directed to purchase a new index number, and to file and serve its amended summons and complaint in accordance with the CPLR within thirty (30) following entry of this Decision and Order by the Bronx County Clerk’s Office.

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