APPEAL by the plaintiffs, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (Antonio I. Brandveen, J.), entered September 19, 2008, in Nassau County, which denied their motion, inter alia, to deem August 14, 2007, to be the date of the commencement of the action.
The opinion of the court was delivered by: Covello, 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 Official Reports.
PETER B. SKELOS, J.P., JOSEPH COVELLO, FRED T. SANTUCCI and RUTH C. BALKIN, JJ.
In 2007, CPLR 2001 was amended to provide a measure of judicial forgiveness for certain mistakes that a plaintiff or petitioner might make with respect to the commencement of an action or special proceeding. On this appeal, the question presented is whether the plaintiffs, who filed a summons and complaint in a personal injury action with the appropriate clerk and within the applicable limitations period, but mistakenly filed those papers under the index number assigned to a related proceeding for leave to conduct pre-action disclosure that had been previously terminated, should, pursuant to the 2007 amendment to CPLR 2001, be deemed to have commenced the personal injury action on the date of that filing, where they later paid an additional index number fee. We answer that question in the affirmative.
On November 8, 2006, the plaintiff Virginia MacLeod was walking in a parking lot. She tripped and fell, and allegedly was injured, as a result of an allegedly dangerous or defective condition in the parking lot.
Within 90 days of her accident, Virginia MacLeod and her husband, the plaintiff William MacLeod (hereinafter together the MacLeods), served the defendant County of Nassau with a notice of claim (see General Municipal Law § 50-e[a]; County Law § 52). In the notice of claim, the MacLeods, who believed that the County owned the parking lot, informed the County about the happening of the accident and the circumstances surrounding it. The MacLeods also alleged that the County created the condition that caused the accident, and/or had actual and/or constructive notice of that condition. The County never paid or adjusted the MacLeods' claims.
On April 12, 2007, the MacLeods commenced a special proceeding for leave to conduct pre-action disclosure pursuant to CPLR 3102(c) against the County (hereinafter the disclosure proceeding), seeking to compel certain disclosure to aid in framing their complaint in a personal injury action they intended to commence. However, in a judgment issued and entered approximately two months later, the Supreme Court denied the MacLeods' petition, and dismissed the disclosure proceeding.
On August 14, 2007, the MacLeods, intending to commence the personal injury action against the County and certain other defendants, filed a summons and complaint with the Nassau County Clerk. However, the MacLeods did not pay the filing fee, and failed to obtain a new index number. Rather, they mistakenly filed the summons and complaint under the index number assigned to the disclosure proceeding.
On August 17, 2007, the MacLeods served the County with the summons and complaint. Approximately three weeks later, the County interposed an answer, and made certain discovery demands. In its answer, the County did not raise any affirmative defense based on the MacLeods' mistake with respect to the commencement of a personal injury action.
Subsequently, one of the parties attempted to file a request for judicial intervention, in order to schedule a preliminary conference. At that point, it was discovered that the summons and complaint bore the index number assigned to the disclosure proceeding, which had been terminated upon the issuance of the judgment (see CPLR 5011; Towley v King Arthur Rings, 40 NY2d 129, 132). The MacLeods were then informed that the index number was "invalid" (cf. Mandel v Waltco Truck Equip. Co., 243 AD2d 542, 543).
Thus, on June 2, 2008, the MacLeods paid an additional index number filing fee, obtained a new index number, and filed a new summons and complaint under that index number. The complaint was identical to the complaint filed by the MacLeods ...