GOLDENBERG v. WESTCHESTER CTY. HLT

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Docket Number

No. 2008-10566.

Attorney(S)

La Sorsa Beneventano, White Plains, N.Y. (Gregory M. La Sorsa of counsel), for appellant. Wilson Elser Moskowitz Edelman Dicker, LLP, White Plains, N.Y. (Faisal A. Khan of counsel), for respondents.

Judges

William F. Mastro
Ruth C. Balkin
John M. Leventhal

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Smart Summary

Factual and Procedural Background

The plaintiff, Arthur Goldenberg, initiated an action to recover damages for medical malpractice and lack of informed consent against Westchester County Health Care Corporation and others. The plaintiff served the summons and complaint on the defendants but never filed them with the court, nor obtained an index number or paid the filing fee. Consequently, the action was never validly commenced under CPLR 304. After the statute of limitations expired, the defendants moved to dismiss the complaint as time-barred. The plaintiff cross-moved for leave to file the summons and complaint nunc pro tunc. The Supreme Court of Westchester County granted the defendants' motion to dismiss and denied the plaintiff's cross motion.

Legal Issues Presented

Whether the plaintiff's failure to file the summons and complaint with the court, despite serving the defendants, rendered the action invalidly commenced under CPLR 304.
Whether the defendants timely raised affirmative defenses regarding lack of jurisdiction and statute of limitations expiration.
Whether the plaintiff could rely on CPLR 2001 to cure the failure to file within the statute of limitations.
Whether the plaintiff was entitled to leave to file the summons and complaint nunc pro tunc to cure the defective commencement of the action.

Arguments of the Parties

Appellant's Arguments

The plaintiff contended that the defendants’ objections to the failure to file and untimeliness of the action were untimely.
The plaintiff argued that CPLR 2001’s remedial provisions should excuse the failure to file within the statute of limitations.
The plaintiff suggested that a proposed complaint filed in a prior proceeding for leave to file a late notice of claim should be treated as the functional equivalent of a filing in this action.
The plaintiff sought leave to file the summons and complaint nunc pro tunc to cure the defective commencement.

Respondents' Arguments

The defendants maintained that the action was never validly commenced because the summons and complaint were never filed with the court.
They asserted affirmative defenses of lack of jurisdiction and statute of limitations expiration in a timely manner via their amended verified answer.
They contended that CPLR 2001 does not excuse a complete failure to file within the statute of limitations.
The defendants argued that the plaintiff’s proposed complaint in a prior proceeding did not substitute for a proper filing in this action.
They opposed the nunc pro tunc filing as it would impermissibly extend the statute of limitations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159	Affirmative defenses regarding jurisdiction and statute of limitations can be timely raised in an amended verified answer.	The court found defendants timely raised their objections via amended verified answer.
Sirkis v Cohen, 23 AD3d 369	Supports the principle regarding timely objection to defective commencement and statute of limitations defenses.	Cited to confirm defendants’ timely assertion of affirmative defenses.
Sangiacomo v County of Albany, 302 AD2d 769, 772	Objections based on improper service must be made within 60 days; statute of limitations objections are not subject to this limitation.	Used to explain why defendants were not required to move to dismiss within 60 days of answer service.
Matter of Miller v Waters, 51 AD3d 113, 117-118	CPLR 2001 remedial language does not excuse complete failure to file within the statute of limitations.	The court rejected plaintiff’s reliance on CPLR 2001 to cure the filing defect.
Rybka v New York City Health Hosps. Corp., 263 AD2d 403	Filing a proposed complaint in a prior proceeding is not equivalent to filing in the current action.	Rejected plaintiff’s argument that prior proposed complaint constituted a valid filing.
Matter of Gershel v Porr, 89 NY2d 327, 332	Papers served must materially conform to those filed to commence an action.	Supported the court’s finding that the served complaint materially differed from the proposed complaint in prior proceeding.
Page v Marusich, 30 AD3d 871, 873	Same as above regarding conformity of served and filed papers.	Reinforced the court’s conclusion on nonconformity of pleadings.
Louden v Rockefeller Ctr. N., 249 AD2d 25, 26	Same principle on conformity of served and filed papers.	Further supported the court’s dismissal based on defective commencement.
Bradley v St. Clare's Hosp., 232 AD2d 814, 815	Nunc pro tunc relief cannot be granted if it would impermissibly extend the statute of limitations.	The court denied plaintiff’s cross motion for nunc pro tunc filing on this basis.

Court's Reasoning and Analysis

The court reasoned that service of summons and complaint alone does not commence an action unless the papers are filed with the court, an index number is obtained, and the filing fee is paid, as required by CPLR 304. Because the plaintiff failed to file the complaint, the action was never validly commenced. The defendants’ amended verified answer timely asserted affirmative defenses of lack of jurisdiction and statute of limitations expiration, satisfying CPLR 3211(e). The defendants were not required to move to dismiss within 60 days of service of their answer since their objection was not based on improper service. The plaintiff could have moved to dismiss the jurisdictional defense under CPLR 3211(b) for a prompt resolution but did not. The court rejected the plaintiff’s reliance on CPLR 2001, which does not cure a complete failure to file within the statute of limitations. Additionally, the plaintiff’s prior filing of a proposed complaint in a separate proceeding was not equivalent to filing in this action, especially since the served complaint materially differed from the proposed one. Granting nunc pro tunc relief would impermissibly extend the statute of limitations, which the court declined to do. Therefore, the court properly dismissed the complaint and denied the plaintiff’s cross motion.

Holding and Implications

The court affirmed the order of the Supreme Court, Westchester County, which granted the defendants' motion to dismiss the complaint as time-barred and denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc.

The direct effect of this decision is the dismissal of the plaintiff's medical malpractice action due to failure to properly commence the action within the statute of limitations. No new precedent was established; the ruling reinforces established principles regarding proper commencement of actions, timely assertion of affirmative defenses, and limitations on nunc pro tunc relief.

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ARTHUR GOLDENBERG, Appellant, v. WESTCHESTER COUNTY HEALTH CARE CORPORATION, Also Known as WESTCHESTER COUNTY MEDICAL CENTER, et al., Respondents.

Ordered that the order is affirmed, with costs.

The plaintiff served the summons and complaint upon the defendants in this malpractice action without ever filing them or obtaining an index number and paying the filing fee for the action. Accordingly, the action was never validly commenced ( see CPLR 304). Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file the summons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants' motion and denied the plaintiffs' cross motion.

Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff's failure to file and to the untimeliness of the action, since they asserted affirmative defenses regarding lack of jurisdiction and the expiration of the statute of limitations in their amended verified answer ( see CPLR 3211 [e]; see generally Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 159; cf. Sirkis v Cohen, 23 AD3d 369). Similarly, the defendants were not obligated to move to dismiss the action within 60 days following the service of their answer pursuant to CPLR 3211 (e), since their objection was not based on improper service ( see Sangiacomo v County of Albany, 302 AD2d 769, 772). Indeed, the plaintiff was free to move pursuant to CPLR 3211 (b) to dismiss the jurisdictional defense if he desired a more prompt resolution of the merits of that defense.

Furthermore, the plaintiff cannot rely upon the remedial language of CPLR 2001 to cure his error, since that statute does not excuse a complete failure to file within the statute of limitations, as occurred here ( see Matter of Miller v Waters, 51 AD3d 113, 117-118; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely on his filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim to act as the functional equivalent of a filing in this action ( see generally Rybka v New York City Health Hosps. Corp., 263 AD2d 403). The papers served in an action must conform in all material respects to the papers that are filed to commence it ( see Matter of Gershel v Porr, 89 NY2d 327, 332; Page v Marusich, 30 AD3d 871, 873; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26). Here, the complaint served in this action dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint. Moreover, the court properly denied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tunc since, under the circumstances herein, the granting of that relief would impermissibly extend the statute of limitations ( see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d 814, 815).