Winston v. Freshwater Wetlands Appeals Bd.

• Decision Date: 19 August 1996
• Docket Number: No. 2,No. 1,1,2
• Citation: 646 N.Y.S.2d 565,224 A.D.2d 160
• Parties: In the Matter of Ronald WINSTON, Appellant, v. FRESHWATER WETLANDS APPEALS BOARD, Respondent, Village of Scarsdale, et al., Intervenors-Respondents (Proceeding). In the Matter of Ronald WINSTON, Appellant, The Public Land Preservations Society, Inc., Intervenor-Appellant, v. FRESHWATER WETLANDS APPEALS BOARD, Respondent, Village of Scarsdale, et al., Intervenors-Respondents. (Proceeding).
• Court: New York Supreme Court — Appellate Division

Page 565

646 N.Y.S.2d 565

224 A.D.2d 160

In the Matter of Ronald WINSTON, Appellant, v. FRESHWATER WETLANDS APPEALS BOARD, Respondent, Village of Scarsdale, et al., Intervenors-Respondents

(Proceeding No. 1).

In the Matter of Ronald WINSTON, Appellant,

The Public Land Preservations Society, Inc., Intervenor-Appellant, v. FRESHWATER WETLANDS APPEALS BOARD, Respondent, Village of Scarsdale, et al., Intervenors-Respondents.

(Proceeding No. 2).

Supreme Court, Appellate Division Second Department.

Aug. 19, 1996.

Kantrowitz & Goldhamer, P.C., Chestnut Ridge (Gary S. Graifman, of counsel), for appellant.

Dennis C. Vacco, Attorney General, New York City (John H. Carley and Gregory J. Nolan, of counsel; Susie Chovev, on the brief), for respondent.

Sive, Paget & Riesel, P.C., New York City (Mark A. Chertok and Steven Russo, of counsel), for intervenor-respondent Village of Scarsdale.

Before ROSENBLATT, J.P., and RITTER, SULLIVAN and FRIEDMANN, JJ.

ROSENBLATT, Justice Presiding.

By enacting a "filing system" in place of a "service system" the New York State Legislature changed the way lawsuits are started in the Supreme Court and the County Court. ¹ The legislation involved a host of statutory amendments, and included timetables that carry significant implications for Statutes of Limitations. The case before us involves the interplay of two statutes that contain time limits and extensions in connection with the recommencement of terminated actions.

CPLR 205(a) and CPLR 306-b(b) are remedial type statutes, designed to allow the recommencement of actions that have suffered dismissals of a generally technical type. Complications arise because CPLR 306-b(b) allows a shorter time period in which to recommence an action than does CPLR 205(a).

Although the petitioner effectuated proper and timely filing and service, his initial CPLR article 78 proceeding was "deemed dismissed" pursuant to the dictates of CPLR 306-b(a), for failure to file proof of service within the applicable time limit. The question before us is whether petitioner was statutorily allotted only 15 days thereafter to commence a new proceeding pursuant to CPLR 306-b(b), or six months, pursuant to the more expansive provisions of CPLR 205(a).

We hold that the six-month extension provided by CPLR 205(a) is available in instances in which the petitioner effects timely and proper filing and service but suffers dismissal owing to the failure to file proof of service within the time limit set by CPLR 306-b(a).

The petitioner owns a parcel of land in Scarsdale. Adjacent to his property is a 16.9 acre parcel of property that his father gave to the Village of Scarsdale over a period of time during the 1970's. In January 1986, the Village contracted to sell the property to Glickenhaus-Judelson Real Estate Partnership (hereinafter Glickenhaus-Judelson). While Glickenhaus-Judelson was proceeding with its plans, the petitioner requested the New York State Department of Environmental Conservation (hereinafter DEC) to add the property to the New York State Freshwater Wetlands Maps. The DEC did so, but after the Village commenced a proceeding pursuant to CPLR article 78 to challenge the DEC's determination, the DEC determined to demap the property. In a decision dated July 29, 1994, and filed on August 1, 1994, the Fresh Water Wetlands Appeals Board (hereinafter FWAB), reviewed the DEC's demapping determination and affirmed it.

Seeking to annul the FWAB determination by way of a proceeding pursuant to CPLR article 78, the petitioner duly filed his notice of petition and petition on August 30, 1994, one day before the 30 day Statute of Limitations expired (see, ECL 24-1105[2] ). Pursuant to CPLR 306-b(a) the petitioner had 15 days from that expiration date within which to both serve the respondents and file proof of service. Although he succeeded in serving the FWAB (and the Attorney-General) on September 8, 1994, he did not mail proof of service until September 16, 1994. Therefore, proof of service was not "filed" with the court clerk until September 21, 1994, when it was received by the Clerk of the Court (see, Enos v. City of Rochester, 206 A.D.2d 159, 619 N.Y.S.2d 459). As the respondents had neither answered the petition, nor otherwise appeared, the Supreme Court, applying CPLR 306-b correctly held that the action was "deemed dismissed" as of September 15, 1994.

FWAB recognizes that the petitioner had the right to recommence the action following the September 15, 1994, dismissal, but asserts that he had only 15 days to do so, citing CPLR 306-b(b). The Supreme Court agreed, and it dismissed the recommenced proceeding, which the petitioner filed on March 8, 1995. The petitioner claims that under CPLR 205(a) he had six months (i.e. until March 15, 1995), within which to recommence the proceeding. We agree with the petitioner. We reach this conclusion after examining the background of the legislation and the place of the two extension statutes (CPLR 205[a] and CPLR 306-b[b] ) in the overall legislative design.

I

A key provision in the change from the "service" system to the "filing" system was embodied in CPLR 304. The previous CPLR 304 (L. 1962, ch. 308) provided that "an action is commenced and jurisdiction acquired by service of a summons" (emphasis added) and by service of a notice of petition or order to show cause, for special proceedings. The present CPLR 304 (L. 1992, ch. 216, § 4, as amended by L. 1994, ch. 563, § 1) provides that an "action is commenced by filing a summons and complaint or summons with notice with the clerk of the court in the county in which the action is brought" (emphasis added), and that a special proceeding is commenced by filing a notice of petition or order to show cause and a petition with the clerk.

CPLR 304 is at the heart of the change, but other amendments were enacted to adjust the various deadlines and Statutes of Limitations. CPLR 203(c) was amended (L. 1992, ch. 216, § 1) to provide that a claim, for Statute of Limitations purposes, is deemed to have been interposed when it "is filed with the clerk of the court" (CPLR 203[c][1]. The extension statutes, CPLR 306-b and CPLR 205(a), were brought into play in order to coordinate the objectives of CPLR 304 and CPLR 203.

CPLR 306-b has two subdivisions. The first, CPLR 306-b(a) provides that proof of service "shall be filed with the clerk of the court within one hundred twenty days" after the initial CPLR 304 filing. The subdivision goes on to provide that if the action or proceeding is one that has a four month Statute of Limitations or less, proof of service must be filed not later than 15 days after the applicable Statute of Limitations expires. If a petitioner fails to file proof of service within that 15 day period, the petition is "deemed dismissed", but CPLR 306-b(b) gives a petitioner an additional 15 days following the dismissal in which to start a new action, free of the Statute of Limitations.

This rule would be easy enough to apply were it not for CPLR 205(a). That section allows six months in which to recommence an action and be spared the preclusive consequences of a Statute of Limitations. To be deserving of the benefits of CPLR 205(a), certain conditions must be met. Those conditions include that the terminated action was itself timely commenced, and that the termination was based on grounds other than voluntary discontinuance, failure of personal jurisdiction, neglect to prosecute, or a final judgment.

The restorative provisions of CPLR 205(a) have been on our books for a very long time, reflecting the idea that a diligent litigant who commenced a timely action but who failed on some generally technical ground, deserves an adjudication on the merits (see, Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 252, 434 N.Y.S.2d 130, 414 N.E.2d 632). Considering that CPLR 205(a) is not available to those specified as undeserving, the statute has been interpreted so as to allow the litigant to enjoy its core purpose, a genuine bite at the apple (see, Matter of Morris Investors v. Commissioner of Fin. of City of N.Y., 69 N.Y.2d 933, 516 N.Y.S.2d 635, 509 N.E.2d 329; 2A Carmody-Wait 2d, N.Y. Prac. § 13:376, at 382; Siegel, N.Y. Prac. § 52, at 63 [2d ed.]; 1 Weinstein-Korn-Miller, N.Y. Civ. Prac. p 205.01). ²

The purposes of CPLR 205(a) were carried forward from former CPA section 23 (L.1920, ch. 925), and from section 405 of the Code of Civil Procedure before that (L.1876, ch. 448). The revival concept evolved from section 84 of the so-called David Dudley Field Code of 1848, and may even lay claim to English statutes that are over 350 years old (Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594). Its history therefore suggests that its capacity for rescue should "not * * * be frittered away by any narrow construction" (Matter of Morris Investors v. Commissioner of Fin. of City of N.Y., supra, at 935, 516 N.Y.S.2d 635, 509 N.E.2d 329, quoting Gaines v. City of New York, supra, at 539, 109 N.E. 594).

We recognize the arguable incongruity in applying CPLR 205(a) to a proceeding pursuant to CPLR article 78: the petitioner would get a six month life-line to recommence a proceeding governed by a 30-day Statute of Limitations, thereby making the extension longer than the limitations period itself. However, the Court of Appeals rejected this argument in Matter of Morris Investors v. Commissioner of Fin. of the City of N.Y. (supra), in which CPLR 205(a) was held applicable to proceedings pursuant to CPLR article 78. The dissent in Morris protested that the additional six months afforded under the statute could allow for an extension of over 10 months (see, Matter of Morris Investors v. Commissioner of Fin. of the City of N.Y., supra, at 940, n. 5, 516 N.Y.S.2d 635, 509 N.E.2d 329). A six month extension may seem asymmetrical when tacked on to a four month (or, as here, a one month) limitations bar, but the purpose of this ameliorative statute is to blunt the fatal...