Kitch v. Markham

• Decision Date: 03 November 1997
• Citation: 665 N.Y.S.2d 1019,174 Misc.2d 611
• Parties: , 1997 N.Y. Slip Op. 97,602 William M. KITCH, Plaintiff, v. Todd M. MARKHAM, Defendant.
• Court: New York Supreme Court

Page 1019

665 N.Y.S.2d 1019

174 Misc.2d 611, 1997 N.Y. Slip Op. 97,602

William M. KITCH, Plaintiff, v.Todd M. MARKHAM, Defendant.

Supreme Court, Westchester County.

Nov. 3, 1997.

Frank V. Merlino, White Plains, for defendant.

Andrew D. Brodnick, White Plains, for plaintiff.

JOHN P. DiBLASI, Justice.

Plaintiff commenced this negligence action seeking to recover from defendant for property damage sustained in an automobile accident.Defendant now moves this Court for dismissal of the complaint under CPLR § 306-band3211.Plaintiff cross-moves for an order permitting his action to proceed, or granting him leave to file a new action nunc pro tunc.As will be apparent from the facts and the legal analysis which follow, this case makes painfully clear that proceeding without an attorney in a legal matter is fraught with the potential for severe consequences.

FACTUAL BACKGROUND

On September 22, 1993, plaintiff was operating a tractor-trailer on Interstate 684 near the Town of Lewisboro when his vehicle was struck by a car operated by defendant.Proceeding pro se, plaintiff commenced this action to recover for the property damage sustained by his truck.On September 23, 1996, the last possible day for commencing his action (CPLR § 214[4] ), plaintiff purchased an index number and filed his summons and complaint.¹However, he failed to serve defendant until April 23, 1997.Subsequently, on August 20, 1997, defendant filed the instant dismissal motion.Although plaintiff offers several arguments in opposition to that application, as well as in support of his cross-motion, it is evident that this action has been dismissed by operation of CPLR § 306-b(hereinafter "306-b").

DISCUSSION

Since July 1, 1992, civil actions in this State have been commenced by the filing of a summons with notice or summons and complaint (CPLR § 304).Pursuant to 306-b(a), a plaintiff must file proof of service of the summons or summons and complaint within 120 days of the filing of such papers.²"If proof of service is not filed and there has been no appearance by the defendant within the time provided in [306-b] for filing proof of service, the action ... shall be deemed dismissed as to the non-appearing party with respect to whom no proof of service has been filed, without prejudice and without costs"(CPLR § 306-b[a] )(emphasis supplied).

It is undisputed that plaintiff failed to serve defendant within the 120 day period as required by 306-b(a).Consequently, the action before this Court was dismissed by operation of law as of January 21, 1997.By virtue of the mandatory language contained in 306-b(a), that dismissal was effective without any court intervention (Matter of Barsalow v. City of Troy, 208 A.D.2d 1144, 1146, 617 N.Y.S.2d 594[3d Dept.1994];Srsich v. Newman, 232 A.D.2d 398, 399, 648 N.Y.S.2d 132[2d Dept.1996] ).

Notwithstanding that his action was dismissed as of January 21, 1997, plaintiff could still have proceeded against defendant, had he acted in a timely fashion.This is because 306-b(b) permits a plaintiff to commence a new action "[i]f an action [has been] dismissed for failure to file proof of service pursuant to" 306-b(a).Moreover, under 306-b(b), such a new action may be commenced within 120 days after the dismissal of the original action, "despite the expiration of the statute of limitations after the commencement of the original action ... provided that service upon the defendant is effected within such one hundred twenty day period".³

Unfortunately for plaintiff, while he served his summons and complaint upon defendant within 120 days after the date this action was deemed dismissed by operation of 306-b(a)he did not commence a new action.Instead, he made service of the papers under the index number assigned to the dismissed action.Although he now realizes the significance of his error, which he attributes to his pro se status ⁴, no exception to the application of 306-b, and in turn, the time bar created by CPLR § 214(4), can be found to save his action.

In obvious recognition of his situation, plaintiff offers a series of arguments in his favor.Each of these is derived from his central contention that his original action remains extant, or in the alternative, that this Court can grant him the right to file a new action nunc pro tunc.In taking this position, plaintiff relies upon the recent decision in Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205, 680 N.E.2d 578[1997].This Court concludes that plaintiff's reliance upon Fry is misplaced, and therefore denies his cross-motion in all respects.

In Fry, petitioner commenced a CPLR Article 78 proceeding by purchasing an index number and submitting an order to show cause for signature by a Supreme Court Justice.Although the proposed order was signed, petitioner filed only an unsigned copy with the Clerk of the Court.However, he served the respondent, who filed an answer contesting the merits of the petition without raising the issue of the defective filing.Thereafter, the trial court dismissed the petition sua sponte, upon the ground that the proceeding was not properly commenced because petitioner failed to comply with the filing requirements of CPLR § 304.

Upon review of the decision of the Appellate Division affirming the trial court, the Court of Appeals reversed.In doing so, the Court observed that it has always been the rule that defects in service of process and the commencement of an action are waivable if the defendant appears without properly raising an objection to such defects (id., at 720, 658 N.Y.S.2d 205, 680 N.E.2d 578).Plaintiff contends that the holding in Fry controls at bar, and that this action existed as of April 1997, and still exists, because defendant did not timely move to dismiss the complaint after it was served upon him.This Court disagrees with plaintiff, because Fry is distinguishable from this case on three grounds.

First, respondent in Fry was actually served with the order to show cause and supporting papers by plaintiff following his defective filing of an unsigned copy of those papers with the Clerk of the Court.At bar, defendant was never served with the "initiatory papers"(see, Fry v. Village of Tarrytown, supra, 89 N.Y.2d, at 719, 658 N.Y.S.2d 205, 680 N.E.2d 578) prior to the date when the action was deemed dismissed.Consequently, in the original action, personal jurisdiction of defendant was never obtained by the Court(Palmisano v. Capital District Transportation Authority, 54 A.D.2d 787, 387 N.Y.S.2d 749[3d Dept.1976] ) and there was no complaint to be answered or moved against by defendant(see, Fry v. Village of Tarrytown, supra, 89 N.Y.2d, at 721 n. 4, 658 N.Y.S.2d 205, 680 N.E.2d 578["Service of process has always been and is still the CPLR's 'dispositive timing event' for answering or for moving to dismiss, and nothing in the filing system changes that rule"] ).That being true, unlike the situation in Fry, there was no objection which could have been raised or waived by defendant in the original action.

Second, the respondent in Fry answered the petition and contested the proceedings on its merits.At bar, defendant did not have the opportunity to contest the merits prior to the dismissal by operation of 306-b(a), nor did he do so after he was served with the summons and complaint subsequent to that dismissal.For that reason, Fry and its progeny are not controlling in this case(cf., Dorfman v. Zelik, 240 A.D.2d 619, 659 N.Y.S.2d 1001[2d Dept.1997][Defendant waived objection to "defective filing" where he litigated the action for almost two years prior to raising the issue] ).

Third, the defect which was held to be waivable by the Court of Appeals in Fry was the failure to file an executed copy of the order to show cause.To the contrary, in this case, the defect involved is plaintiff's failure to commence a new action following the dismissal of his original action by operation of 306-b(a) for not serving defendant within 120 days after the filing of the summons and complaint.This difference is of controlling significance, and mandates denial of any relief to plaintiff.

The petitioner in Fry paid his filing fee and obtained an index number, thereby satisfying the revenue raising goal of CPLR § 304(see, Fry v. Village of Tarrytown, supra, 89 N.Y.2d, at 719, 658 N.Y.S.2d 205, 680 N.E.2d 578).⁵As a result, the Court of Appeals was not presented with the situation at bar, where an original action was dismissed, but service of the summons and complaint filed in the original action was made without the purchase of a new index number and the payment of an additional fee.Such facts, rather than coming within the holding of Fry, are controlled by the decision in Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836[1996], which the Fry court stated was not undermined by its holding that failure to strictly comply with the filing requirements is waivable.

In Gershel, a petitioner properly commenced an Article 78 proceeding, but respondent challenged the service made upon him, which resulted in the granting of a traverse hearing.Rather than proceeding with that hearing, petitioner announced that he would withdraw the order to show cause which initiated the proceeding, and would serve respondent again, whereupon the trial court marked the order to show cause dismissed.Thereafter, petitioner did serve respondent, but did not first purchase a new index number and pay the requisite filing fee.On those facts, the Court of Appeals held that the new service was of no legal effect.

In reaching that determination, the Gershel court first explained the manner in which 306-b operates.Thus, the court observed that:

[A]n action or special proceeding, which has been technically commenced upon filing, remains inchoate until follow-up service is effected and proof of service filed; failure to take the necessary follow-up steps in the time provided will result...