Matter of Kane v Leistman

[*1] Matter of Kane v Leistman 2006 NY Slip Op 52062(U) [13 Misc 3d 1230(A)] Decided on October 27, 2006 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2006
Supreme Court, Richmond County

In the Matter of the Application of John Kane and Stephanie Kane, Petitioners,

against

Richard Leistman and the New York City Transit Authority, Respondents.



80135/06

Judith N. McMahon, J.

On December 9, 2004, the petitioner John Kane was allegedly injured when his motor vehicle collided with a bus operated by respondent Richard Leistman and owned by respondent New York City Transit Authority at the intersection Richmond Road and Narrows Road, Staten Island, New York. On January 3, 2005, the petitioner served a notice of claim upon the NYCTA. Thereafter, the petitioner retained Pennsylvania counsel, but apparently did not inform him that he had served a notice of claim. It is undisputed that Pennsylvania counsel never filed a notice of claim on behalf of the petitioner, but that a timely notice of claim had been filed by the petitioner, John Kane, himself. On May 5, 2005, Pennsylvania counsel represented the petitioner at the statutory hearing.

Kane v Leistman

On April 7, 2006, New York counsel, on behalf of the petitioner, filed a notice of petition and petition with the Richmond County Clerk, Staten Island, New York. The petition requested an extension of time to file a notice of claim and/or permission to file a summons and complaint. The [*2]proposed summons and complaint were attached as an exhibit to the petition. It is clear from the petition, that New York counsel was unaware that the petitioner had filed a timely notice of claim. On May 30, 2006, the notice of petition and petition were served upon the NYCTA. On June 29, 2006, petitioners filed an amended petition (which corrected some typographical errors in the original petition) and also filed a request for judicial intervention.

In opposition to the petition, the NYCTA attached as an exhibit the notice of claim, and contended that the request to file a late notice of claim was moot. The NYCTA also argued that because the statute of limitations expired on April 9, 2006, the amended petition was untimely as it was dated June 29, 2006.

At oral argument on September 19, 2006, the return date of the petition, counsel for the petitioner agreed that a timely notice of claim had been filed. However, counsel argued that the petition was timely filed on April 7, 2006, two days prior to the expiration of the statute of limitations. Counsel showed the court a receipt for the purchase of an index number and alleged that it was for this case. The court adjourned the motion until October 17, 2006, to allow both the petitioner and the NYCTA to submit papers on the timeliness of the petition.

In his reply papers, the petitioner submitted as an exhibit the receipt for his purchase of the index number for this proceeding dated April 7, 2006. The petitioner set forth that the

Kane v. Leistman

statute of limitations was tolled on the date of the filing of the petition. Thus, he should be

allowed to file a summons and complaint against the NYCTA. In its sur-reply, the NYCTA contended that the petition should be rejected as there was no need for permission to file a late notice of claim as the notice of claim was timely filed. Additionally, the NYCTA asserted that the petition was filed after the statute of limitations had run as the RJI was filed on June 29, 2006. Finally, the NYCTA argued that even if the petition was timely filed, the summons and complaint should be rejected as the petitioners cannot file a summons and complaint under a special proceeding index number but must purchase a separate index number.

Effective July 1, 1992, the legislature amended CPLR 304 to provide that actions and special proceedings are commenced by the filing of the summons and complaint or notice of petition and petition with the clerk of the court (see, McKinney's Practice Commentaries C:304:1). This is the so-called commencement by filing system. Now, litigants may toll the statute of limitations merely by filing their summons and complaint or notice of petition and petition (see, Matter of Gershel v. Porr, 89 NY2d 327, 330-331 [1996]). In this case, it is clear from both the petitioner's papers in support of the motion and the court file that the notice of petition and petition were filed on April 7, 2006, when an index number was purchased. This date is within the statute of limitations.

It is also clear that the request for judicial intervention was not filed simultaneously with the notice of petition, but instead was filed on June 29, 2006. 22 NYCRR 202.6(a) states that "[t]he court shall not accept for filing [a notice of petition] unless accompanied by a written

Kane v. Leistman

request for judicial intervention." In the instant matter, the notice of petition was accepted by the [*3]County Clerk without the request for judicial intervention. However, the Second Department has held that the erroneous acceptance of a notice of petition without a request for judicial intervention is not charged to the petitioner (see, Buonocore v. Village of South Nyack, 238 AD2d 336 [2d Dept. 1997]). The mere fact that the RJI number was not purchased when the petition was filed does not constitute a jurisdictional defect mandating dismissal (see, Matter of Atlantic Refining & Marketing Corp. v. Assessor of the City of Ithaca, 246 AD2d 875 [3d Dept. 1998]).

Since this court had determined that the petition is timely, it is necessary to consider the relief requested. The NYCTA correctly points out that the request to file a late notice of claim is moot, as the notice of claim was timely. However, the notice of petition also requests permission to file the summons and complaint attached as an exhibit. Although the petitioner only requested this relief because he mistakenly believed that no notice of claim had been filed, he cannot now file the summons and complaint since the statute of limitations has expired. However, the statute of limitations is tolled from the time the petitioner commenced his proceeding until the order deciding the motion becomes effective (see, Biblin v. Nassau County Med. Center, 61 NY2d 67 [1984]; Shister v. City of New York, 309 AD2d 915 [2d Dept. 2003]; Cruz v. City of New York, 302 AD2d 553 [2d Dept. 2003]). Thus, the court grants the petitioner's request to file the summons and complaint and the petitioner is directed to comply

Kane v. Leistman

with all service requirements as set forth in the CPLR (see, Harris v. Niagara Falls Board of Ed., 6 NY3d 155 [2006]; CPLR 304, CPLR 306-b). Accordingly, it is

ORDERED, that the petitioners' request to file a Summons and Complaint is granted and the petitioner has 20 days to file the Summons and Complaint from the date the Order has been entered; and it is further,

ORDERED, that this matter is hereby transferred to the Civil Court of the City of New York pursuant to CPLR 325-D.

E N T E R,

Dated: October 27, 2006

J.S.C.