A bill just passed out of committee in the NY State Senate, sponsored by the Court System [OCA] would amend CPLR 2001 to permit courts to forgive errors in the starting of law suits.  One example is a well-known mistake of purchasing an index number for a motion seeking leave to file a late notice of claim, receiving permission, and then using the same index number to start the case.

Joel Stashenko, in the NYLJ reports:

"The failure to properly acquire an index number or other similar procedural error attorneys make when filing an action, sometimes with fatal consequences to their cases, could be disregarded under legislation that has reached the floor of the state Senate.

Sponsors said the measure was prompted by a series of Court of Appeals rulings holding that such errors can result in outright dismissal of suits, provided that a timely objection is made to the defective filings. In one of the most recent rulings, in Matter of Harris v. Niagara Falls Bd. of Education, 6 N.Y.3d 155 (2006), the Court dismissed an action because the plaintiff filed the summons and complaint under the same index number that was used to make a motion to serve a late notice of claim and failed to pay another index fee.

The legislation stems from a proposal made by the Advisory Committee on Civil Practice at the Office of Court Administration. The Senate sponsor of the bill, Codes Committee Chairman Dale Volker, said the bill was introduced at the request of Chief Administrative Judge Jonathan Lippman.

The legislation, S3563, would amend §2001 of the Civil Practice Law and Rules to specify that "the failure to purchase or acquire an index number or other mistake in the filing process" that does not prejudice either party in the action "shall be disregarded" by the court. If a mistaken non-payment of a fee is involved, the legislation calls for the applicable fees to be paid and the non-prejudicial error to be ignored.

The bill would apply to the "filing of a summons with notice, summons and complaint or petition to commence an action."

Mr. Volker said yesterday the measure clarifies what he called uncertainty about how serious errors made in the initial filing of civil actions are in light of the finding in Harris and other court rulings, and also the discretion judges have under CPLR §2001 to allow for their correction.

"It gives the court discretion to correct or ignore mistakes that don’t go to the heart of the cases," Mr. Volker, R-Hamburg, said.

The bill cleared Mr. Volker’s committee on Tuesday."

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.