Fourth Department Addresses Statute of Limitations Issue

The Court of Appeals handed down another set of decisions yesterday, and I plan to address a number of the decisions in the coming weeks.  I still have a few leftover cases from the last round of decisions that I haven't gotten to yet, as well.  However, there is always a dry spell in the summer, so I'll have plenty of time to cover the Court of Appeal's decisions, as well as decisions from all four Appellate Divisions in the upcoming months.

In the meantime, the Fourth Department recently considered an interesting issue in Schoemann v Adams, 2006 NY Slip Op 03345.  In this case, the plaintiff commenced an action seeking to recover for personal injuries by filing a summons with notice.  An affidavit of service upon the defendant was never filed and the defendants never appeared in the action, so it was deemed dismissed after 120 days had passed. 

Pursuant to CPLR s. 306-b(b), the plaintiff had 120 days after the dismissal to commence a new action, even though the statute of limitations had expired between the time that the action was initially commenced and then dismissed. 

During the second 120 day period, the plaintiff filed a complaint and second summons with the County Clerk's office, and was re-issued the same index number that had been issued in the first action.

The defense made a motion to dismiss the second action on the grounds that it had not been commenced within the three year statute of limitations since the plaintiff had failed to "to purchase a new index number and file new initiatory papers under a new index number prior to the expiration of the statute of limitations ... or within 120 days after the [first action was deemed dismissed]."

The Court concluded that the re-issuance of the same index number by the County Clerk's office did not invalidate the commencement of the action.  The Court stated that:

Plaintiff established that he paid the requisite filing fee and secured "an index number" for the new action. Defendants failed to preserve for our review their present contention that the receipt submitted by plaintiff to prove that he paid the second filing fee constitutes inadmissible hearsay. We thus conclude that, although the index number given to plaintiff by the County Clerk's office was not a "new" index number, plaintiff complied with the "absolute necessity of purchasing an index number to commence [the] action".  (Internal citations omitted)

This is a prime example of why, in my opinion, an action should never be commenced by the filing of a summons with notice--especially when the statute of limitations is about to run.  Too many things can go wrong and some things are entirely out of your control, such as the situation that occurred in this case.  And if that happens, then you're quite possibly out of luck and so is your client.

Professor David Siegal hammered that point home in my New York Practice class in law school, and I've never forgotten it.  As he always used to stress--play it safe in your cases and let the appellate courts decide the law in SEC (someone else's case).

The plaintiff got lucky in this case.  Why risk it?  File a summons and complaint and forego the summons with notice and all the potential pitfalls inherent in that method of commencing a case.