Court of Appeals Addresses Requirement That a Separate Index Number Be Purchased for Each Proceeding

In Harris v. Niagara Fall Board of Educ., 2006 NY Slip Op 01113, the Court of Appeals considered the issue of whether the Complaint was time barred pursuant to CPLR 3211 due to the plaintiff's use of an index number from a prior special proceeding. 

In this case, the plaintiff was injured in an automobile accident and failed to serve a notice of claim within 90 days of the accident.  Accordingly, he commenced a special proceeding seeking to serve a late notice of claim and purchased an index number in the process.  Shortly thereafter, the plaintiff retained different counsel, who commenced a second special proceeding using the original index number and again sought leave to serve a late notice of claim .  The Court granted the request, the plaintiff then served a late notice of claim and subsequently commenced a personal injury action against the defendants using the same index number that was used in both prior special proceedings.

The Court stated that:

Under the procedure mandated by the CPLR, "service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced"

Accordingly, the Court concluded that the claim should be dismissed as time-barred since the plaintiff failed  to purchase a new index number and instead used the index number from the prior special proceedings, thus failing to comply with the commencement-by-filing system.

The New York Civil Law blog also posted about this case here.