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January 10, 1994

LISA CAPIZZI, ind. and as Personal Representative of Santo Capizzi, Plaintiff,


The opinion of the court was delivered by: PIERRE N. LEVAL


 This is a wrongful death action instituted in the courts of New York and removed to federal court. The decedent died on December 16, 1990; the parties agree that the limitations period governing the action is two years. On December 16, 1992, the last day of the limitations period, the plaintiff purchased an index number from the clerk of the New York Supreme Court. The named defendants were not served with a summons and complaint until April 1, 1993. The defendants move to dismiss the action as time-barred. Plaintiff cross-moves for an order affirming timeliness.


 In 1992, the New York legislature significantly amended the statutory regime governing the commencement of civil actions. Before July 1, 1992, actions in New York were commenced by service of process upon one's adversaries. The law required the purchase of an index number and the filing of proof of service within 30 days of service; if this filing was not timely done, however, plaintiffs could petition for a nunc pro tunc order establishing timeliness.

 Because the availability of nunc pro tunc orders was impairing the effectiveness of the index number/proof of service requirement as a source of revenue, the legislature amended the statute to provide that after December 31, 1992:

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. . . . Filing shall mean the delivery of the summons with notice or summons and complaint to the clerk together with any fee required . . .

 N.Y. CPLR § 304. These requirements function as conditions precedent to the service of process on one's adversaries. Indeed, service made without an index number is a nullity; the new regime thus ensures that no action can be commenced without paying the statutory filing fee. The period between July 1, 1992 and December 31, 1992, during which the plaintiff's index number was purchased, was a "grace period" during which actions could be commenced under either of the two CPLR regimes.

 During this statutory grace period the plaintiff complied with neither of the two statutorily prescribed methods for commencing an action. In the plaintiff's application for an index number, filed on the last day of the statute of limitations, she conceded on the index number purchase form that a summons was not being filed therewith. It is also undisputed that no summons was served on the defendants until long after the statute of limitations had run. The plaintiff argues that the mere purchase of an index number prior to the running of the statute of limitations sufficed to toll the statute until the complaint was served and/or filed. This position misconstrues New York Law.

 Plaintiff's contention -- that during the transitional period an action could be commenced under the old CPLR regime simply by purchasing an index number -- is incorrect. CPLR § 304 unmistakably required service on one's adversaries to commence an action. *fn1" The defendants correctly argue that because the defendants were not timely served with a summons, no action was properly commenced within the limitation period. The plaintiff's reliance on CPLR § 306-a(c) is misplaced. That statute provided that "Where a summons in an action commenced in the supreme or county court, including a third party action, has not been filed within the time prescribed by this section, the court shall order the filing thereof nunc pro tunc." Its nunc pro tunc reversion applies only to an action that has already been commenced. It has no application here as plaintiff had not previously commenced the action.

 The plaintiff has also clearly failed to meet the commencement requirements of the new statutory regime -- commencement by filing of the summons. The unambiguous requirements of the amended section 304 were not met. *fn3"

 The current Section 304, which calls for commencement by filing, understandably does not contain a nunc pro tunc filing provision. *fn4" It does provide a safety mechanism: "Where a court finds that circumstances prevent immediate filing with the clerk of the court, the signing of an order requiring the subsequent filing at a specific time and date not later than five days thereafter shall commence this action." This statutory provision demonstrates the falsity of plaintiff's argument that purchasing an index number suffices to commence an action, and that filing/service can take place at any time after the index number is purchased. Indeed, the supplemental practice commentary on § 304 states that "whether the court may extend the five day period for filing is a difficult question. If so doing would give longer life to the statute of limitations, the answer must be 'no.' See 1992 Supplementary Practice Commentaries on CPLR § 203, at 203:2A." This conclusion comports with CPLR § 201 which specifically provides that an action "must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement. No court shall extend the time limited by law for the commencement of an action."

 Academic commentary on the recent statutory changes supports the conclusion that merely purchasing an index number has never sufficed to commenced an action. See Marc Arkin, New York's New Commencement by Filing Law, (Matthew Bender Special Pamphlet 1992 § 14) (During the six month transitional period, "an action may be commenced, and the statute of limitations tolled, either by filing pursuant to the new act or by service of the summons, provided that the index number fee is paid by December 31, 1992"); New York State Law Digests, No. 390 §§ 1, 2, No. 391 § 22 (summons with notice and/or summons and complaint must be filed before statute of limitations has run.) As the practice commentary on CPLR § 304 points out, "In actions (and third-party claims) commenced by service during the transition period, the requirements of the old version of CPLR § 306-a (Laws of 1991, ...

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