Two CPLR Devices Worth Remembering

By: Katryna L. Kristoferson, David Paul Horowitz, and Barbara Jaffee | January 18, 2024

Introduction

This month we visit two lesser-known and used CPLR devices: The summons with notice and a motion for pre-action disclosure. We are fortunate to be joined this month by Justice Barbara Jaffe (Ret.)[i] who writes on the summons with notice, including an interesting experience she encountered with the device while on the bench. Katryna then takes the laboring oar and writes on pre-action disclosure. Together, they craft a useful guide to two useful procedural tools.

The Summons With Notice (CPLR 305[b]): A Handy Device To Avoid Being Time-Barred

When Time Is Short?

Have you ever suddenly realized that an action you have yet to commence will soon be time-barred? As the hairs stand up on the back of your neck, you wonder what to do when time does not permit you to do all you need to do to draft an adequate complaint. What, me worry? Nah, just file that “highly useful device” known as a summons with notice. It halts the running of any limitation period and affords time to draft a complaint the length of War and Peace.

Along with the summons, per CPLR 305(b), one need only provide notice of the nature of the action, the relief sought, and the sum of money for which judgment may be taken on default (except for actions for medical malpractice), including “at least basic information concerning the nature of plaintiffs claim and the relief sought.” Parker v Mack, 61 NY2d 114, 117 (1984); Scaringi v Elizabeth Broome Realty Corp., 191 AD2d 223, 223 (1st Dept 1993). Absent sufficient detail, an action will be jurisdictionally defective and insufficient for obtaining personal jurisdiction over the defendant. Therefore, a summons with notice can provide a useful stopgap when you do not possess the requisite information for a legally sufficient summons and complaint.

Before charting this course, note that, in contrast to a complaint, the notice cannot be amended, Parker, 61 NY2d at 115-116; Micro-Spy, Inc. v Small, 9 AD3d 122, 126-127 (2^nd Dept 2004), whereas the summons and proof of its service may be amended at any time, in the court’s discretion and on such terms it deems just, if a substantial right of a party against whom the summons issued is not prejudiced. CPLR 305(c).lp

After the summons with notice is filed, plaintiff has 120 days after the commencement of the action to serve defendant with the summons with notice. If service is not timely made, on motion, the action must be dismissed without prejudice, unless on good cause shown or in the interest of justice, the time for service is extended. CPLR 306-b.

Next, defendant must appear by filing and serving either an answer or a notice of appearance, or by making a motion that extends the time to answer. CPLR 320(a). Depending on how the summons was served, an appearance must be made within 20 or 30 days after service. Id. Generally, an appearance in the case “is equivalent to personal service of the summons,” absent an objection by motion pursuant to CPLR 3211(a)(8) or in the answer. CPLR 320(b).

In lieu of timely appearing in the action, defendant may serve a written demand for a complaint within the 20 or 30 days allotted for appearing under CPLR 320(a). CPLR 3012(b). Service of the demand extends the time to appear until 20 days after service of the complaint, although a demand or motion under this subdivision does not itself constitute an appearance in the action. Id. Plaintiff must serve the complaint within 20 days after service of the demand and absent a demand, within 20 days after service of the notice of appearance. Id. If the complaint is not timely served, the court may, on motion, dismiss the action. Id. In opposing the motion, plaintiff must demonstrate a reasonable excuse for the delay and a meritorious claim. Id.

Perusal of caselaw from all four Appellate Division departments reflects that the aforementioned statutes are strictly construed. In Micro-Spy, supra, 9 AD3d 122, the Court held that as plaintiff had served defendant with only a summons, the service was a nullity, defendant’s demand thereafter for a complaint was premature, and the 20-day period within which the complaint must be served had not begun to run. Wimbledon Fin. Master Fund, Ltd. v Weston Capital Mgt. LLC, 150 AD3d 427, 428 (1^st Dept 2017); Heath v Normile, 131 AD3d 754 (3d Dept 2015); Ryan v High Rock Dev. LLC, 124 AD3d 751 (3d Dept 2015); see Gilewicz v Buffalo Gen. Psychiatric Phyciatric, 118 AD3d 1298 (4^th Dept 2014) (failure to serve notice with summons constitutes jurisdictional defect warranting dismissal of action).

And yet, in affirming me in an action that was removed to federal court three days after plaintiff had filed a summons with notice, followed by years of litigation in two federal courts during which time plaintiff filed its complaint, and thereafter by remand back to state court (twice), the First Department took a practical approach and rejected defendants’ reliance on the mandatory nature of the statutory scheme relating to summonses with notice. Fouad v Milton Hershey Sch. & Sch. Trust, 204 AD3d 607 (1^st Dept 2022), affg 73 Misc 3d 1111 (Sup Ct, New York County 2021). There, three months post-removal, and with defendants’ consent, plaintiff filed and served a verified complaint with the SDNY. Subsequently, the action was transferred to a federal district court in Pennsylvania (MDP), where plaintiff filed a first amended complaint.

Finding that federal subject matter jurisdiction was lacking, the MDP remanded the action to me. It was again removed to the SDNY and remanded back to me with the findings that the summons with notice was the operative pleading as the federal proceedings, including the first amended complaint, were nullities for lack of subject matter jurisdiction, and that the remand returned the action to its position before the initial removal. On remand, notices of appearance were filed in my court.

Plaintiff asked that I deem the first amended complaint filed in the SDNY the operative pleading, whereas defendants relied on the findings that the summons with notice was the operative pleading and that absent federal jurisdiction, the first amended complaint and the order granting plaintiff leave to file it were annulled. On that basis, defendants moved pursuant to CPLR 3012(b) to dismiss the action for plaintiff’s failure to file a complaint timely, alleging that the time within which plaintiff was to file it had expired 20 days after defendants filed notices of appearance on remand.

Under the circumstances, and notwithstanding defendants’ argument that dismissal pursuant to CPLR 3012(b) was mandatory, I held that the interests of judicial economy, the avoidance of delay, effort, and expense, and the comity between federal and state courts justified permitting plaintiff’s reliance on the verified complaint that he had filed by right and on consent in the federal court even if later found to be without subject matter jurisdiction, and acknowledged that deeming the summons with notice the operative pleading would result in a default. Thus, I held that the verified complaint was the operative pleading that had been filed before CPLR 3012(b) was triggered. 73 Misc 3d at 1115-1117. In affirming, the Court held, with admirable practicality, that:

CPLR 3012(b) does not require that plaintiff re-serve defendants with state process merely because they were served with the complaint in federal court…[and that] giving effect to pleadings filed in federal court before remand will avoid the needless waste of time, effort, and expense that would result from requiring plaintiff to duplicate in Supreme Court his actions of the past four years in the federal court or possible forfeiture of claims before those claims are resolved on their merits.
Fouad, 204 AD3d at 607.

The Court’s practicality may be the product of an understanding that although the statutes are strictly applied, having immediately removed the action to federal court, defendants may have been deemed to waive or render moot the statutory requirements.

Method Of Obtaining Disclosure Before Action Commenced (CPLR 3102[c]): And, Alternatively, When You Happen to Have Additional Time…

Alternatively, have you ever been retained on a case where, with due diligence, you lacked sufficient information to identify a defendant? Or, perhaps you need to ensure that critical discovery is preserved and/or obtained prior to commencing an action? Fret not, the CPLR has just the provision for you. Under CPLR 3102(c), prior to commencement, a court order can be sought to “aid in bringing an action, to preserve information or to aid in arbitration.”

Lacking Important Information?

Under CPLR 3102(b), “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may appoint a referee to take testimony.” Simply put, discovery can be obtained prior to the start of a case, if, disclosure is needed to: (a) identify one or more parties; (b) frame claims or allegations in a complaint; (c) preserve testimony; (d) preserve evidence; and/or (e) aid in arbitration.

In order to obtain pre-action disclosure, a party must demonstrate the existence of a meritorious cause of action through submission of either an affirmation or affidavit based on first-hand knowledge. Ero v Graystone Materials, 252 AD2d 812 (3d Dept 1998); Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592 (2d Dept 2002). CPLR 3102(c) is not available to the would-be plaintiff to determine if he [or she] has a cause of action.” Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C3102:4; Stewart v NY City Tr. Auth., 112 AD2d 939 (2d Dept 1985); Stump v 209 E. 56th St. Corp., 212 AD2d 410 (1st Dept 1995). As stated once upon a time:

If [plaintiff] does not have a describable sense of the wrong that he thinks hurts him, he ought not be allowed a judicial franchise to penetrate into another party’s affairs, either by examination or inspection, to find out whether he ought to sue or ought not to sue.

If such a practice be sanctioned, mere suspicion could invoke troublesome and expensive procedures against a party without any need of showing good cause; and without remedial protection to such a party; and what is perhaps worse, the opportunity for annoyance and intrusion with the aid of judicial power would be quite unlimited. The vaguest sort of apprehension could set in motion legal machinery with heavy impact on a purported adverse party; and there would be nothing vague about the weight of the impact.
Stewart v Socony Vacuum Oil Co., 3 AD2d 582 (3d Dept 1957).

…in other words, you better have a legally cognizable claim. CPLR 3102(c) allows for some lack of details in that claim, however, it does not permit a fishing expedition. Once that meritorious claim is demonstrated, a court order seeking to identify a necessary party, or obtain important discovery can be obtained.

Having discussed what the statute cannot do, let’s turn to what it can do.

First, the statute is intended to aid parties with a meritorious cause of action to identify potential defendants:

If a party is unable to determine the identity of potential defendants, but is able to demonstrate a meritorious cause of action, the court will order pre-action disclosure but limit it to obtaining the identity of prospective defendants. Toal v. Staten Island Univ. Hosp., 300 A.D.2d 592, 752 N.Y.S.2d 372 (2d Dep’t 2002) (petitioner sought to identify prospective defendants for medical malpractice claim); Ero v. Graystone Materials, Inc., 252 A.D.2d 812, 676 N.Y.S.2d 707 (3d Dep’t 1998) (in a products liability case in which petitioner demonstrated that design of product was defective, the respondent was required to produce a witness for examination before trial together, with all records relating to the purchase, acquisition, repair, maintenance, modification and alteration of the product).[ii]

Second, the statue is available to aid parties with a meritorious cause of action in “framing a complaint:”

A party may also seek pre-action disclosure to determine the form of the action. See CPLR 3102(c). This is commonly referred to as “framing a complaint.” In this respect, pre-action disclosure is utilized to uncover information necessary to draft a complaint where a party is able to demonstrate that, although it is likely to have legal claims, it lacks the necessary information to frame the complaint’s allegations. Wien & Malkin L.L.P. v. Wichman, 255 A.D.2d 244, 680 N.Y.S.2d 250 (1st Dep’t 1998) (petitioner-employer established that it likely had causes of action for misappropriation of trade secrets, unfair competition and breach of contract against former employee court granted pre-action disclosure from former employee as material and necessary to frame the complaint).[iii]

Need To Preserve Evidence?

As explained in “New York Civil Disclosure:”

In some cases, preservation of testimony may be necessary if the death of a witness or party is imminent. Thus, pre-action disclosure may also be ordered to preserve the testimony of a future plaintiff, defendant or witness. In re Davis, 178 Misc. 2d 65, 67, 677 N.Y.S.2d 889, 891 (Ct. Cl. 1998) (pre-action disclosure was ordered to preserve the testimony of dying alleged victim of medical malpractice action; the court balanced need to preserve testimony against the inconvenience and expense to the defendant). However, whether pre-action testimony obtained to preserve evidence is admissible at trial is a separate issue that lies within the discretion of the trial court. Stanco v. Steinberg, 254 A.D.2d 363 (2d Dep’t 1998) (there was “an adequate demonstration” of need to preserve testimony; trial court “has wide discretion to determine what is material and necessary”).[iv]

Conclusion

Whether you find yourself under a time crunch or lacking important and necessary information for a claim, understanding that you do have options under the CPLR can provide welcome relief in our already stressful lives as litigators.

[i] https://www.linkedin.com/in/barbara-jaffe-10b83735/

[ii] 1 LexisNexis AnswerGuide New York Civil Disclosure § 7.04

[iii] 1 LexisNexis AnswerGuide New York Civil Disclosure § 7.04

[iv] 1 LexisNexis AnswerGuide New York Civil Disclosure § 7.05

Please see ALM.com for the full printed article.