Parker v. Mack

• Decision Date: 21 February 1984
• Parties: , 460 N.E.2d 1316 Arvin B. PARKER et al., Appellants, v. Leo M. MACK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 882

472 N.Y.S.2d 882

61 N.Y.2d 114, 460 N.E.2d 1316

Arvin B. PARKER et al., Appellants, v. Leo M. MACK, Respondent.

Court of Appeals of New York.

Feb. 21, 1984.

[61 N.Y.2d 115] Edmund J. Hoffmann, Jr., Cortland, for appellants.

Donald L. Schoenwald, Syracuse, for respondent.

OPINION OF THE COURT

JONES, Judge.

No action is commenced by the service of a summons alone which neither contains nor has attached to it a notice of the nature of the action and of the relief sought; accordingly, when such a summons is dismissed plaintiff may not avail himself of the six-month extension for commencement of a new action upon the same transaction or occurrence provided by CPLR 205 (subd. [a] ) following dismissal, on grounds other than voluntary discontinuance, dismissal for neglect to prosecute or a final judgment on the merits, of an action which has been timely commenced.

On October 17, 1981, three years lacking one day after plaintiff wife was involved in an accident with defendant while driving plaintiff husband's car, two summonses, unaccompanied by complaints, were served on defendant. Despite the requirement of CPLR 305 (subd. [b] ), ¹ the papers served gave no notice either of the nature of the action or of the relief sought, and none was attached. When plaintiffs subsequently forwarded complaints to defendant's counsel, they were returned and defendant moved to dismiss the actions on account of the insufficiency of the summonses.

Plaintiffs did not oppose the motion to dismiss, but, because more than three years had then elapsed since the auto accident of October 18, 1978, cross-moved for inclusion in the order of a provision reciting that they would have six months thereafter, under CPLR 205 (subd. [a] ), ² within which to commence another action.

Supreme Court granted the motion to dismiss but included in the order the recital requested by plaintiffs. In so doing, it concluded that the absence from the summonses of the CPLR 305 (subd. [b] )-mandated notice was not a jurisdictional defect and had not prevented actions from being commenced by the service of those papers.

On appeal by defendant from so much of the order as authorized the commencement of a new action within six months, the Appellate Division modified by reversing the provision of the order that had granted plaintiffs' cross motion, holding that service of a summons, unaccompanied by a complaint and without the notice required by CPLR 305 (subd. [b] ), did not confer jurisdiction over defendant or constitute the timely commencement of an action, and that as a consequence the six-month extension created by CPLR 205 (subd. [a] ) was unavailable. Plaintiffs have appealed as of right. We affirm the order of the Appellate Division, 92 A.D.2d 699, 460 N.Y.S.2d 399.

Prerequisite to the availability of the benefits of CPLR 205 (subd. [a] ) an earlier action must have been commenced, and timely so. CPLR 304 provides that an action "is commenced" and jurisdiction acquired by service of a summons, and CPLR 305 (subd. [b] ) mandates that if a complaint does not accompany it, the summons shall have the described notice on or attached to it. The language of the latter section is imperative, and the statutory dictates are clear--what is required for the commencement of an action is the proper service of a summons, and the summons, when unaccompanied by a complaint, must itself or by an attachment furnish to the defendant what has been described by the Judicial Conference (in its Annual Report recommending insertion of the prescriptive word "shall" in CPLR 305, subd. [b] ) as "at least basic information concerning the nature of plaintiff's claim and the relief sought" (Twenty-third Ann Report of N.Y. Judicial Conference, 1978, p. 273). In another case we are today reaffirming our previous holdings that no action is commenced if the manner of service of the summons is not in compliance with statutory requirements (Markoff v. South Nassau Community Hosp., 61 N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ----). The same result follows if the paper served is not in compliance with the statutory mandate as to substance and content (Ciaschi v. Town of Enfield, 86 A.D.2d 903, 448 N.Y.S.2d 267 [cited with approval in McLaughlin, 1982 Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, 1983-1984 Cum.Ann. Pocket Part, CPLR C305:3, p. 131]; see Ann., 6 A.L.R.3d 1043, 1053-1054; but see authorities cited dissenting opn., at pp. 125-126). The Legislature, by its adoption of the amendment proposed by the Judicial Conference, has determined and fixed a defendant's entitlement, at the time and as part of service of process, to knowledge concerning the claim being asserted against him--an entitlement which imposes no conceivable burden or hardship on the plaintiff.

The dissent, although acknowledging the statement by the Judicial Conference (p. 277) that, following adoption of the proposed amendment to CPLR 305 (subd. [b] ) mandating inclusion of the notice in question on a summons served alone, omission of such notice "would certainly constitute a jurisdictional defect", would limit such impact to the effect on default judgments. Were such discrete--and unusual--consequences intended, the Legislature could readily have so provided. No such differentiation is evidenced in the statute however. In that circumstance, respect for legislative authority requires that we give equal effect for all purposes to the explicit addition of the imperative "shall" in CPLR 305 (subd. [b] ).

Although the dissent suggests that our decision is inconsistent with previous decisions of this court, in no case cited have we held that an action has been "commenced", with resulting activation of the six-month extension provision of CPLR 205 (subd. [a] ) or its predecessor, when that action was terminated by reason of a deficiency related to obtaining jurisdiction over the person of the defendant. Thus, in Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594 the dismissal was predicated on lack of subject matter jurisdiction of the court in which the first action had been commenced. In Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 434 N.Y.S.2d 130, 414 N.E.2d 632 and George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 417 N.Y.S.2d 231, 390 N.E.2d 1156 the earlier actions had been dismissed because of infirmities peculiar to the plaintiffs. The fatal consequence of a lack of jurisdiction over the person of the defendant as contrasted with a lack of subject matter jurisdiction for purposes of availability of a CPLR 205 (subd. [a] ) extension is well recognized (McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C205:3, p. 196, and Supplemental Practice Commentaries, Book 7B, 1983-1984 Cum.Ann. Pocket Part, pp. 77-80).

Finally, we have rejected before (Smalley v. Hutcheon, 296 N.Y. 68, 70 N.E.2d 161), as we reject today (Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283, 473 N.Y.S.2d 766, 461 N.E.2d 1253, supra ) the argument that the fact of actual notice on the part of a defendant that plaintiff is seeking to litigate a claim against him is a substitute for compliance with statutory prescriptions for commencement of an action against him. Acceptance of such a proposition might suggest the wholly unacceptable proposition that nothing more than a letter from counsel advising that a suit was being instituted, delivered to defendant, would serve to activate the provisions of C PLR 205 (subd. [a] ). ³

Accordingly, the order of the Appellate Division should be affirmed, with costs.

MEYER, Judge (dissenting).

Plaintiffs served defendant within the governing limitation period with summonses which neither contained notice of the nature of the action nor the relief demanded but which clearly apprised defendant that plaintiffs sought to litigate a claim against him in Supreme Court and furnished him with their names and address as well as the name, address and telephone number of their attorney. The majority holds the absence of a complaint and of such notice is a jurisdictional defect and that plaintiffs, therefore, are not entitled to the benefit of the tolling provision of CPLR 205 (subd. [a] ). It does so on the basis of the one word change in CPLR 305 (subd. [b] ) made by chapter 528 of the Laws of 1978, and notwithstanding (1) legislative history showing that the amendment was made for an entirely different purpose, (2) the substantial body of law running back almost four centuries according a broad remedial effect to the tolling provision of CPLR 205 even though the earlier action which triggers its provision has been dismissed for lack of jurisdiction over the subject matter or over the person, (3) the further broadly remedial provision of CPLR 305 (subd. [c] ) vesting in the court discretion to allow amendment of a summons, absent prejudice to a substantial right of a party against whom the summons was issued, and (4) the legislative intent to excise such formalism evidenced by adoption of the Civil Practice Law and Rules and epitomized by CPLR 103 (subd. [c] ) and CPLR 104. Because I agree with this court's assertion in Caffaro v. Trayna, 35 N.Y.2d 245, 251, 360 N.Y.S.2d 847, 319 N.E.2d 174, that "If there is here a provable claim, only unfairness to the defendant or inescapable statutory mandate should foreclose assertion of that claim" and because here neither exists, I respectfully dissent.

I

The papers on the cross motion which the Appellate Division ordered denied and the decision of the Special Term Judge establish the following: On October 18, 1978, Ute M. Parker was injured when her husband's car, which she was operating, was struck by a car owned and operated by defendant, which allegedly failed to stop for a stop sign. On October 17, 1981, defendant was personally served with two summonses, one entitled in an action by Ute M. Parker against defendant, the other entitled in an action by Arvin B. Parker, her husband,...