Commencing an Action is Supposed to be Easy, Right?

O’Brien v Contreras,

___ AD3d ___, 2015 NY Slip Op 02463 [2d Dept., 2015]

An action is commenced by the filing of a summons and complaint, or a summons with notice. (CPLR 304[a]) No filing means no action, and anything that happens after is a nullity. What could be simpler? Yet people continue to get it wrong, with disastrous consequences.

Here, plaintiff intended to commence an action to modify the terms of some agreement. Plaintiff obtained an index number and presumably paid the fee, but never filed a summons and complaint. Rather, plaintiff obtained an order to show cause to modify the agreement. The motion was granted, and this appeal followed.

An order to show cause initiates a motion, not an action. A motion only exists as part of an action or proceeding, and not in a vacuum or as an independent proceeding. Without a filed summons and complaint there was no action in which to move. The order was therefore reversed for lack of jurisdiction, and the purported action dismissed.

Note that the amendment to CPLR 2001, allowing the court to correct errors in the filing process, presumes that the summons and complaint has been filed in some form. The failure to file in any form leaves the court without jurisdiction and cannot be corrected.

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