Cobaugh v County of Onondaga

[*1] Cobaugh v County of Onondaga 2008 NY Slip Op 52410(U) [21 Misc 3d 1137(A)] Decided on December 2, 2008 Supreme Court, Onondaga County Karalunas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2008
Supreme Court, Onondaga County

Susan M. Cobaugh, Plaintiff,

against

County of Onondaga, Onondaga County Sheriff's Office, Jail Ministry, Authorized Affiliate of the Onondaga County Justice Center, John Piliger, personally and as authorized representative of the Onondaga County Justice Center, Defendants.



2006-3894



Susan M. Cobaugh, Pro Se

DIN No. 05-G-0129

Bedford Hills Correctional Facility

P.O. Box 1000

Bedford Hills, NY 10507-2499

Gordon J. Cuffy, County Attorney

Carol L. Rhinehart, Deputy County Attorney

Attorney for Defendants County of Onondaga

and Onondaga County Sheriff's Office

John H. Mulroy Civic Center

421 Montgomery Street, 10th Floor

Syracuse, NY 13202

Mackenzie Hughes LLP

Neil J. Smith, Esq.

Attorneys for Defendants Jail Ministry

and John Piliger

101 South Salina Street, Suite 600

P.O. Box 4967 Syracuse, NY 13221-4967

Deborah H. Karalunas, J.

By Notice of Motion dated June 2, 2008, defendants Onondaga County and Onondaga County Sheriff's Office moved to dismiss the complaint of plaintiff Susan M. Cobaugh. By Notice of Cross-Motion dated June 9, 2008, defendants Jail Ministry and John Piliger also moved to dismiss the complaint against them. Plaintiff opposed the motions, which the court took on submission.

In early 2005, Cobaugh was transferred from the Onondaga County Justice Center to Bedford Hills Correctional Facility. On February 9, 2005, Cobaugh signed an "Inmate Property Disposal Form" in which she authorized release of her property to defendant John Piliger of Jail Ministry. See Ex. D to 6/15/06 Claim. By signing the form, Cobaugh also acknowledged that any property not picked up by April 11, 2005 would be destroyed. When Cobaugh did not receive her property, which included her legal papers, she made inquiry. By letter dated June 24, 2005, Sergeant Salvagni of the Onondaga County Sheriff's Department told Cobaugh that her property was destroyed on April 11, 2005. See Ex. J to 6/15/06 Claim.

On December 22, 2005, plaintiff filed with the court a "Notice of Intent to File a Claim" dated November 3, 2005 concerning defendants' destruction of her property. On June 19, 2006, plaintiff filed a 17-page document dated June 15, 2006 entitled "Claim" with attached exhibits A through T. In the claim, plaintiff charged defendants with negligence and deliberate indifference for the same incident. The parties treated the claim as a complaint.

Defendants Jail Ministry and John Piliger answered plaintiff's claim by an answer verified on September 14, 2006. Plaintiff in October 2006 made a motion related to discovery in the action. The county defendants at that time asserted that plaintiff never properly served them with the complaint.

On April 11, 2007, plaintiff moved for a default judgment against defendants Onondaga County and Onondaga County Sheriff's Department. By Order dated June 1, 2007, this court denied the motion, holding that plaintiff's previous attempts to serve the county defendants were improper and plaintiff failed to obtain personal jurisdiction over the county defendants. By Order dated August 15, 2007, the court denied plaintiff's motion for reconsideration of its June 1, 2007 decision.

Plaintiff wrote a summons and complaint dated April 9, 2008 that she served on all defendants pursuant to CPLR § 312-a. The county defendants acknowledged service of the April 2008 documents. The Jail Ministry defendants did not respond. Cobaugh letter dated 6/22/08 at ¶ 12.

II. Discussion

Both sets of defendants contend that the action must be dismissed because Cobaugh never filed a summons with the Onondaga County Clerk as CPLR § 304 requires. Cobaugh admits that she did not initially file a summons. Cobaugh Aff. of 6/18/08 at ¶ 6(b) & (c). Cobaugh did [*2]mail a copy of a summons dated April 9, 2008 to the Supreme Court Clerk's Office, which received it on April 16, 2008.

Section 304 requires filing of a summons and complaint or summons with notice with the clerk of the court in order to commence an action. Wilk v. Genesee and Wyoming R.R. Co., 45 AD3d 1274, 1275 (4th Dep't 2007). Pursuant to the New York Constitution, the County Clerk is the "clerk of the court" in a Supreme Court action. NY Const., art. VI, § 6(e). A plaintiff's failure to file a summons with the correct clerk has been held to be a jurisdictional defect requiring dismissal of the action upon timely motion. Mendon Ponds Neighborhood Ass'n v. Dehm, 98 NY2d 745, 746-47 (2002); Gershel v. Porr, 89 NY2d 327, 330 (1996); see also Montecalvo v. Columbia County, 274 AD2d 868, 869-70 (3d Dep't 2000) (holding that "[w]hile defects in filing are waived if the party appears and litigates on the merits, nonfiling of the papers necessary to institute the action is a nonwaivable, jurisdictional defect").

The state of the law changed when the legislature amended CPLR §§ 304, 2001 and 2102. Section 304 adds, among other things, a cross-reference to CPLR § 2102. The new Section 2102(b) provides that when a local practice allows "for the filing of a paper other than at the office of the clerk of the court, such paper shall be transmitted to the clerk of the court." In other words, a Supreme Court Clerk receiving a summons and complaint is able to transmit the papers to the Onondaga County Clerk for filing so that the action is properly commenced. Both of these amendments apply to actions and proceedings commenced on or after January 1, 2008. See Miller v. Waters, 51 AD3d 113, 118 n.2 (3d Dep't 2008).

The amendment to CPLR § 2001 was effective as of August 15, 2007. The amended Section 2001 gives courts discretion to correct a plaintiff's errors in filing a summons with notice or summons and complaint "upon such terms as may be just" or to disregard the mistake if a substantial right of defendant is not prejudiced. Legislative history of the amendment makes clear, however, that Section 2001 will "not excuse a complete failure to file within the statute of limitations." Sponsor's Mem., Bill Jacket, L. 2007, ch. 529. See also Miller, 51 AD3d at 117-18. Thus, the amendment "does not provide any basis to allow correction of the failure to file the [summons] in the County Clerk's office prior to the expiration of the statute of limitations." Sperduti v. New York State Executive Dep't, 18 Misc 3d 447, 450 (Erie Co. 2007).

Cobaugh's failure to file a summons in June 2006 along with her claim (or complaint) is a jurisdictional defect requiring dismissal of her action because the amendments to Sections 304, 2102 and 2001 could not apply to cure her mistake. The issue becomes whether her filing of a summons and complaint with the Supreme Court Clerk in April 2008 was effective. This requires examination of the relevant statutes of limitations because, as noted, the CPLR amendments will not excuse plaintiff's failure to make a timely filing.

Section 50-i of the General Municipal Law requires a plaintiff to commence a tort action against a municipality at least 30 days after service of the notice of claim and within one year and ninety days "after the happening of the event upon which the claim is based." NY Gen. Mun. Law § 50-i(1). Putting aside the issue of plaintiff's late notice of claim, the statute of limitations against the county defendants began to run on April 11, 2005 and expired on June 11, 2006. Plaintiff's April 2008 filing therefore was untimely.

The statute of limitations against the Jail Ministry and John Poliger is three years. CPLR § 214. The statute began to run on April 11, 2005 and expired on April 11, 2008. Plaintiff [*3]mailed her summons and complaint on April 9, 2008, but the Supreme Court Clerk's office did not receive it before the expiration of the limitations period. The Court of Appeals explicitly rejected plaintiff's request that we consider her summons to have been filed at the time she delivered it to prison authorities for forwarding to the appropriate court. See Grant v. Senkowski, 95 NY2d 605, 608 (2001). Because plaintiff did not timely file the required summons with the court, her action must be dismissed.

III. Conclusion

For the foregoing reasons, the motion and cross-motion are GRANTED and plaintiff's complaint is DISMISSED. Counsel for Onondaga County is directed to submit an order on notice in accordance with this decision within 15 days.

DATED: __________________________________________________________

Syracuse, New YorkHon. Deborah H. Karalunas

SUPREME COURT JUSTICE