CPLR 304

Wesco Ins. Co. v Vinson, 137 A.D.3d 1114, 26 N.Y.S.3d 870 [2d Dept., 2016]

All this has happened before, and no doubt it will all happen again, but the error is so basic that it bears repeated comment.

A motion can exist only in the context of an action or special proceeding. It follows that before a motion can be made, the initiatory papers for an action or proceeding must be filed. That means a summons and complaint or summons with notice (for an action) or a petition (for a special proceeding). Without them, there is no action or special proceeding. Even if the court signs an order to show cause in the non-existent action, it lacks subject-matter jurisdiction and the order to show cause and any resulting orders are nullities.

Here, an insurance company moved to fix a Worker’s Compensation lien. It obtained an index number (and paid the fee), and filed a proposed Order to Show Cause on the motion, which the court signed and eventually decided. The missing step was that the insurer never filed or served a summons, complaint or petition.

The failure to file is a non-waivable, jurisdictional defect. It means that the court’s jurisdiction was never invoked, and the entire proceeding was a nullity.

Note, particularly, that CPLR 2001 is no help to the insurer. That allows mistakes or irregularities in the commencement to be corrected, but only if the initiatory papers were in fact filed. Where, to take the most common example, they are filed under the wrong index number CPLR 2001 will allow correction of the error by the purchase of a new index number (and payment of the fee). Here, by contrast, the initiatory papers were never filed at all. Or, in Dealy-Doe-Eyes Maddux v Schur, where the pro se plaintiff filed a complaint but no summons, the defect went to subject-matter jurisdiction and could not be corrected.

We saw this just last year, in O’Brien v Contreras. There, too, the purported plaintiff meant to obtain an order (to modify the terms of an agreement), and so obtained an order to show cause without first filing a summons or complaint. The OSC did not commence an  action or proceeding, and so the court lacked subject-matter jurisdiction.

Contrast these with another of last year’s cases, Heath v Normile, where a summons with notice was filed, but only a naked summons was served. Since the action had been properly commenced, the defect went to personal jurisdiction only, not subject matter jurisdiction. While the chain of events took some untangling, the court’s jurisdiction had been properly invoked and the errors could all be corrected. Defendant had demanded a complaint, which plaintiff had not served, and defendant then moved to dismiss for failure to serve a complaint. The service of the naked summons having been a nullity, the demand for a complaint was premature and dismissal on that ground was not available. The time to serve the summons with notice had expired, and the plaintiff clearly had not acted diligently, but the interests of justice allowed an extension of time to serve.

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.