Laursen v Dundee Cent. School Dist.

[*1] Laursen v Dundee Cent. School Dist. 2006 NY Slip Op 51745(U) [13 Misc 3d 1209(A)] Decided on September 18, 2006 Supreme Court, Yates County Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 18, 2006
Supreme Court, Yates County

Jeffrey Laursen, Plaintiff

against

Dundee Central School District & Jarrett W. Gause, Defendants.



05-040



Reid A. Holter, Esq.

On behalf of the Plaintiff

Osborne, Reed & Burke, LLP

Amy LaFever Koch, Esq., of counsel

On behalf of the Defendants

W. Patrick Falvey, J.

MEMORANDUM-DECISION AND ORDER

W. Patrick Falvey, Acting J.S.C.

The defendants have moved this Court to dismiss the plaintiff's Complaint on the basis of a lack of personal jurisdiction, and/or the plaintiff's failure to submit to a General Municipal Law §50-h examination.

The underlying action is for personal injuries caused to the plaintiff by the defendant Jarrett W. Gause, while both plaintiff and defendant Gause were students at the Dundee Central School.

The plaintiff personally requested and was given leave to file a late Notice of Claim on April 19, 2005 under Index No. 05-040. The plaintiff then used this same index number for the June 9, 2005 filing of the Summons and Complaint. In response to defendant's June 30, 2006, motion to dismiss, plaintiff procured a new index number (06-0295) and filed an identical Summons and Complaint under same. The plaintiff cross-moves for consolidation of the two actions and in addition, seeks certain discovery requested following depositions of the plaintiff. The Court heard oral arguments and reserved decision on August 8, 2006.

The fact pattern herein is almost identical to that involved in the recent New York State Court of Appeals' decision, Harris v. Niagara Falls Board of Education, 6 NY 3rd 155. As in the [*2]case herein, the plaintiff filed his Summons and Complaint using the same index number as that for the special proceeding allowing the plaintiff to serve a late Notice of Claim. A factual distinction exists, however, in that in Harris, the defendant moved "soon after" the Summons and Complaint was filed to dismiss pursuant to CPLR §3211 claiming the action was time barred and had not been properly commenced. Here, the defendants at bar submitted their Answer to the First Summons and Complaint on June 20, 2005, raising personal and subject matter jurisdiction as affirmative defenses but waited more than a year to bring their application to dismiss; and in the interim, the Statute of Limitations expired on April 13, 2006.

There is no question that the plaintiff erred in using the same index number for the filing of the Summons and Complaint. He has since procured a new index number and thus the revenue-raising purposes of the statutory scheme have been satisfied. Ruiz v. NYC Housing Authority, 216 AD2d 258. However, the resolution of this motion rests on whether the defendants made their motion in a timely manner.

In Sangiacomo v. County of Albany, 302 AD2d 769, 772, the Third Department dealt with a case where the summons was never properly filed. Obviously, the action was a nullity, but the Third Department went on to say,

"Even if we were to consider the failure to file the summons waivable, we are not satisfied that defendants waived the defense of lack of jurisdiction. As correctly observed by the Supreme Court, defendants asserted an affirmative defense to jurisdiction in their answers, and thus, their appearances in the action do not confer jurisdiction. Since the jurisdictional defect asserted relates to commencement and not to service of process, defendants had no obligation to move pursuant to CPLR §3211(e)."[FN1]

As is the case here, in Sangiacomo, supra , discovery was conducted, including the taking of depositions of witnesses, and after discovery was complete and the Statutes of Limitations had run, the Sangiacomo defendants moved to dismiss the action.

It would be preferable that actions be resolved on the merits. However, based upon the existing case law, the Court is constrained to dismiss this matter, which is fatal to the plaintiff's cause of action because the Statute of Limitations have expired. In this regard, the Court notes David D. Siegel's Comments in New York State Law Digest No. 554, February 2006:

"There is an incongruity here we can't resist addressing. The real cause of the fatality in Harris was the statute of limitations; it expired after the plaintiffs attempted commencement of the action with the old index number. Thus, the dismissal, on the defendant's motion, was based on the statute of limitations. And because the filing defect fell into the category of personal [*3]jurisdiction, the plaintiff could not get the 6 months that CPLR 205(a) otherwise allows for a new action after a prior non-merit dismissal. That assured the deadness of the claim."

Furthermore, unlike the situation in Otero v. NYC Housing Authority, 94 NY2d 800, 801, no "unique and opaque factual circumstances"[FN2] were presented to this Court to justify deviation from the Harris v. Niagara Falls Board of Education, 6 NY3rd 155.

In conclusion, this court is bound by the Harris decision, which mandates dismissal where the plaintiff has failed to fulfill the filing requirements and the defendant has timely objected. (See also, Pegrone v. Jim Doyle Ford, Inc., 818 NYS2d 907.

The defendants' motion is granted, and the plaintiff's action is in all respects dismissed, without costs and based upon the foregoing, the plaintiff's cross-motion is dismissed in all respects as moot.

This constitutes the decision, judgment and order of the Court.

SO ORDERED.

DATED: September ____, 2006

W. Patrick Falvey

Acting Supreme Court Justice

Yates County Footnotes

Footnote 1:Although there is a 60-day requirement to make a motion following submission of the answer to personal jurisdiction objections relating to service, there is no similar provision for defects relating to filing. CPLR §3211(e).

Footnote 2:The Defendants' appellate brief in the Harris case indicates the "unique and opaque" circumstances in Otero revolved around whether the Summons and Complaint were filed before the Statute of Limitations expired. (See Brief for Respondents Niagara Falls Board of Education, Niagara Falls City School District and Carmen A. Grant, Jr., FN 2 of the Brief.) In the case at bar the proper filing was done after the limitations period had expired.