Monday, March 28, 2011

CPLR 2001 Can Only Bend So Far

In Goldenberg v. Westchester County Health Care Corporation, the plaintiff commenced a special proceeding to file a late notice of claim, attaching a copy of a proposed complaint.  After the Supreme Court granted the petition, the plaintiff served the hospital with a notice of claim as well as a summons and complaint.  The plaintiff, however, did not purchase an index number and failed to file a summons and complaint.  The Court of Appeals held that while CPLR 2001 was amended to allow trial courts to fix or overlook defects in the filing process, the amendments were not meant to excuse a complete failure to file within the applicable statute of limitations. Since the plaintiff never filed a summons and complaint, the Court held that the mistake could not be excused.  

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