The opinion of the court was delivered by: Gary F. Knobel, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Upon the foregoing papers retrieved from the Civil Clerk's office file, the motion by defendant for an order discontinuing this action pursuant to CPLR 3217(3)(b), or in the alternative, for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a), is denied in its entirety. However, the plaintiff is directed to immediately purchase a new index number (see, CPLR 2001).
The unusual procedural issues raised by this motion involve (1) the application of the recent amendment to CPLR 2001, which not only gives the Court discretion to correct or ignore mistakes or omissions occurring at the commencement of an action, it requires the Court to excuse the commencement error if a substantial right of a party is not prejudiced, (2) the effect of this amendment on the Court of Appeals' commencement- by- filing decisions, (3) whether the revised version of CPLR 2001 should be applied when there is a defect in an action, such as the one at bar, that has been commenced by service of process, and (4) the timing of a motion to dismiss the complaint based upon the affirmative defenses alleging commencement infirmities, i.e., "fail[ure] to properly commence an action" and "fail[ure] to properly obtain an index number".
The procedural history of this case is as follows:
Vinings Spinal Diagnostic, P.C. as assignee of Andrew Amitrano, commenced an action on November 26, 2001, under index number 018354/01, against the defendant Progressive Casualty Insurance Company. The plaintiff sought to recover no fault insurance benefits for medical services in the sum of $808.80 rendered to Andrew Amitrano on or about June 7, 2000.
In April of 2002, the plaintiff moved for an order pursuant to CPLR 3215 granting a default judgment against the defendant. That motion was subsequently withdrawn by stipulation, signed by all parties, dated April 1, 2002. Thereafter, the defendant filed an answer asserting twelve (12) affirmative defenses.
On September 11, 2002, the defendant moved for an order pursuant to CPLR 3126 striking the plaintiff's complaint for plaintiff's failure to respond to the defendant's outstanding discovery demands. The plaintiff opposed said motion and cross-moved for various forms of relief. By order dated November 27, 2002, this Court denied defendant's motion as moot since plaintiff had responded to the defendant's outstanding discovery demands. The Court's order also denied the plaintiff's cross-motion as it was not properly noticed (see, CPLR 2215).
On May 8, 2003, this action was referred to mandatory arbitration in accordance with 22 NYCRR 28.2. On October 16, 2003, the case was heard before an arbitrator where both parties appeared. The arbitrator's award entered on January 13, 2004, stated that the action was "withdrawn without prejudice in order to re-institute the suit with the proper parties". It appears that the parties entered into a Stipulation of Discontinuance, in 2003. A review of the Clerk's file of this action reveals that the Stipulation of Discontinuance dated "_____2003" and filed with the Clerk's office on March 14, 2004, provided, in relevant part, that:
"It is hereby stipulated and agreed by and between the attorneys for the respective parties herein that the above captioned is discontinued without prejudice [emphasis added] This discontinuance shall in no way prevent the institution of an action for the bills herein under John M. Horvath, D.C., P.C. The defendant, Progressive Insurance Company, shall serve an answer to the plaintiff's complaint within forty (40) days of service thereof as service of the complaint is to be served on the law firm of Freiberg & Peck...by either personal delivery or certified mail, return receipt requested, and Freiberg and Peck agree to accept service of process on behalf of [defendant] Progressive Casualty Insurance Company."
The Stipulation of Discontinuance was signed by the attorneys for both parties (see, CPLR 3217[a]). Consequently, the stipulation had the effect of discontinuing the action pending under index number 18354/01.
Thereafter, on or about March 19, 2004, notwithstanding the fact that the action under index number 18354/01 had been discontinued, an amended summons and complaint bearing that same District Court index number was served by regular mail on Freiberg & Peck. The name of the plaintiff, as contemplated by the parties' stipulation, that was set forth on the amended summons and complaint was John M. Horvath, D.C., P.C., rather than Vinings Spinal Diagnostic, P.C. The plaintiff never purchased a new index number. Defendant served an amended answer to the plaintiff's amended summons and complaint on March 24, 2004. The amended answer asserted three jurisdictional defenses; a fourth affirmative defense that "[t]he plaintiff has failed to properly commence an action," a fifth affirmative defense that "[t]he Court has no jurisdiction over the parties,"and an eleventh affirmative defense that "[t]he plaintiff has failed to properly obtain an index number". The defendant's attorney claims that defendant's file was archived in an "off-site storage facility" and "misplaced by the storage facility".
Three years later, on January 25, 2007, this case scheduled for a discovery conference by the Clerk of the Civil Term. The parties entered into a discovery stipulation which outlined the time frames for which both parties had to complete discovery. A review of the Clerk's file indicates that this stipulation required the defendant to provide the plaintiff "with all relevant denial of claim forms, peer reviews/IMEs, including medical records reviewed by peer/IME doctor, within ninety (90) days of the date of this Stipulation (4-26-2007)". If the defendant failed to timely furnish these records, it would be precluded from offering that information at the time of trial. The plaintiff also ...