Recent legislative changes to CPLR 2001 and to filing statutes  have cleared out some well known, but still troublesome traps for the unwary.  Many cases have been dismissed because a practitioner re-used an index number for a new case.  An example:  plaintiff starts a special proceeding seeking leave to file a late notice of claim, succeeds, and then files a summons against the municipality under the original index number.  Another example:  practitioner starts a special proceeding by filing with the Supreme Court clerk rather than the County Clerk.

Here is an article from the NYLJ by Palu Aloe.Chapter 529 aims to give some relief for those who file papers incorrectly.2 It amends CPLR 2001, which permits courts to overlook nonprejudicial mistakes, to include mistakes in the filing of the initial process, including the failure to pay the index number fee or acquire an index number, provided the applicable fee is paid.3 This measure became effective on its signing on Aug. 15, 2007. Although, the apparent focus of the bill appears to be cases in which the index number fee is not paid because the summons is filed under a previously obtained index, the legislative history indicates a more expansive purpose and is intended "to correct or ignore mistakes or omissions occurring at the commencement of an action that do not prejudice the opposing party, in the same manner and under the same standards that it already does with regard to all other nonprejudicial procedural events."4 Although not explicitly stated, this would appear to apply to other types of filing mistakes, such as filing of the initial papers in the wrong office, as was the case in Matter of Mendon Ponds Neighborhood Assn. v. Dehm, 98 NY2d 745, 747 (2002). It appears intended to repudiate arguments that strict adherence to CPLR 304 is required for commencement, and any defect in the filing process will result in dismissal so long as there is a timely objection by the defendant. Instead, the new regime requires that the defect in the filing process actually results in some actual prejudice to the defendant, and if no such prejudice can be shown, then the defect is to be ignored."

Motion dates and service are also changed. "The timing of motions under New York practice has long been a source of problems. The time frames, unrealistically short, are rarely followed and usually just the starting point for a discussion between counsel of a briefing schedule, or worse, a series of appearances at a calendar call and a request for adjournments so that answer and reply papers may be submitted. Chapter 185 seeks to step into this morass, but it does so in a manner not wholly satisfactory, and adds as many problems as it solves. It amends CPLR 2214(b) to require the moving party seeking a reply to serve the motion 16 (instead of 12) days before the return date. If 16 days are provided, then answering papers and any notice of cross-motion must be served seven days in advance of the motion. CPLR 2214(b) further provides that reply as well as "responding" affidavits must then be served one day in advance. "Responding" affidavits presumably means affidavits in response to the cross-motion, although the new statute is not explicit, and in fact, continues to provide no response for a cross-motion served two days in advance of the motion (which still can be served if the moving party does not provide the extra notice)."

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