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."