Vanyo v. Buffalo Police Benevolent Ass'n, Inc.

• Decision Date: 17 December 2019
• Docket Number: No. 99,99
• Citation: 140 N.E.3d 538,117 N.Y.S.3d 164,34 N.Y.3d 1104
• Parties: Ann VANYO, Appellant, v. BUFFALO POLICE BENEVOLENT ASSOCIATION, INC. et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

34 N.Y.3d 1104
140 N.E.3d 538
117 N.Y.S.3d 164

Ann VANYO, Appellant,
v.
BUFFALO POLICE BENEVOLENT ASSOCIATION, INC. et al., Respondents.

No. 99

Court of Appeals of New York.

December 17, 2019

140 N.E.3d 539

OPINION OF THE COURT

MEMORANDUM.

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117 N.Y.S.3d 165

The order of the Appellate Division insofar as appealed from should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

While recognizing that this case presents a unique procedural posture, we nevertheless conclude that plaintiff's first and second causes of action should be reinstated. Those claims, asserted in identical form in both the original and amended complaints, were timely interposed when plaintiff filed the original summons and complaint, i.e., "when the action [was] commenced" (see CPLR 203[c] ; 304[a] ). The relation-back doctrine is therefore inapplicable (see CPLR 203[f] ). Although plaintiff failed to serve the original complaint, on this record, the claims should not have been dismissed under CPLR 306–b because defendants did not properly raise such an objection and thus waived it (see CPLR 320[b] ; 3211[e] ). However, we agree with the Appellate Division that plaintiff's fourth cause of action fails to state a due-process cause of action. We remit to the Appellate Division for consideration of defendant Buffalo Police Benevolent Association, Inc.'s argument, raised but not addressed on the appeal to that Court, that plaintiff's first cause of action should be dismissed pursuant to CPLR 3211(a)(7).

RIVERA, J. (dissenting).

Plaintiff Ann Vanyo filed a document the parties refer to as an amended complaint after expiration of the statute of limitations for the first two causes of action alleged therein. Nonetheless, plaintiff argues the causes of action are timely because she asserted them in a prior, unserved complaint, interposed in this same action within the statutory limitations period. Plaintiff's argument proceeds from the assumption that both pleadings stand on equal footing when determining the timeliness of these two causes of action. However, more than a century of case law establishes that there can only be one operative pleading and so plaintiff's first two causes of action survive only if they relate back to a timely filed, valid preexisting action of which defendants had notice before the expiration of the statute of limitations. That is not the case here and therefore the first two causes of action were properly dismissed as time-barred.

I.

Days before the expiration of the statute of limitations, plaintiff, represented by counsel, filed a summons and

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complaint asserting two causes of action related to her termination of employment, one each against named defendants the Buffalo Police Benevolent Association, Inc. (PBA) and the City of Buffalo. The limitations and service clocks ran out and she never served the summons and complaint. Rather than move to extend the time for service, plaintiff, acting pro se, simultaneously filed two other documents under the same index number and designated them as an amended summons and verified complaint. The amended summons and complaint documents are stamped filed as NYSCEF Doc. No. 2 and 3, respectively. As relevant to this appeal, the amended complaint document asserts the first two causes of action alleged in the previously filed, unserved

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complaint.¹

Defendants each moved to dismiss the complaint—referring to the amended complaint—under CPLR 3211(a)(5) and (7), claiming, amongst other things, that the first and second causes of action are untimely.² Plaintiff opposed the motion, asserting that these causes of action were timely interposed based on the filing of the unserved complaint. In its reply, the PBA requested dismissal of the unserved complaint pursuant to CPLR 306–b for lack of service within the statutory time period.

Now represented by new counsel, plaintiff responded by filing a motion under CPLR 306–b to extend the time to file the unserved complaint and deem it timely served nunc pro tunc. That section provides that where, as here, the applicable statute of limitations is four months or less, service of the summons and complaint "shall be made not later than fifteen days after the date on which the applicable statute of limitations expires" ( CPLR 306–b ). The section further provides that, "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (id. ).

In opposition, the PBA asserted that (1) plaintiff delayed in moving under CPLR 306–b until defendants moved to dismiss

34 N.Y.3d 1107

the amended complaint under CPLR 3211 ; (2) plaintiff offered no explanation for failing to serve the complaint; and (3) to grant plaintiff's motion under CPLR 306–b would prejudice the PBA given the particularities of union grievance and arbitration procedures. Thus, according to the PBA, plaintiff failed to satisfy the requirements of CPLR 306–b, as she could not show good cause to grant the motion for an extension of time to serve the complaint and an extension would not be in the interest of justice. For its part, the City argued that plaintiff's "action" was a "de facto application to vacate an arbitration award," and was therefore untimely under CPLR 7511. The City also adopted the arguments as to why plaintiff's motion should be denied, and similarly requested the complaint be dismissed for lack of timely service under CPLR 306–b. At oral argument on the motions, counsel for plaintiff conceded the complaint was never served but contended that was of no moment because the amended complaint was served and, "[o]nce you amend a complaint, the original complaint becomes a nullity."

Supreme Court, among other things, denied plaintiff's CPLR 306–b motion, and, by separate order, granted defendants' motions to dismiss and dismissed "the complaint" with prejudice. The Appellate Division affirmed the latter order with two Justices dissenting ( Vanyo v. Buffalo Police Benevolent Assn., Inc. , 159 A.D.3d 1448, 1452, 73 N.Y.S.3d 827 [4th Dept. 2018] ). The dispositive point of contention between the majority and dissenters was whether the first two causes of action were timely ( id. at 1450, 73 N.Y.S.3d 827 ).

II.

Before turning to the merits of the appeal, it is important to explain the matters

140 N.E.3d 541

117 N.Y.S.3d 167

I do not consider in my analysis—and which are implicitly left open by the Court's short memorandum affirmance. I do not address whether plaintiff's second document may properly be treated as an amended complaint within the meaning of CPLR 3025, given the original summons was not served (see CPLR 3025 ["A party may amend (a) pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it"]; CPLR 320[a] ["An appearance shall be made within twenty days after service of the summons ..."] ). I also do not opine as to whether, under CPLR 306–b, defendants'...