On March 9, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Polo Electric Corp. v. Aspen America Insurance Co., 2016 NY Slip Op. 30590(U), refusing to dismiss an action on the ground that the Summons with Notice was insufficiently-detailed.
In Polo Electric Corp., the court faced what it described as
a question of first impression: if an action is commenced by summons with notice, and the summons adequately contains the requisite detail with respect to some claims and a subsequently filed complaint includes additional claims not noticed in the summons, are the claims not set forth in the summons jurisdictionally deficient, regardless if they are sufficiently pleaded in the complaint? This question is complicated by the well settled principle that, unlike a complaint, if a summons is jurisdictionally defective, it may not be amended.
The court’s analysis is worth reading in its entirety. However, because of its length, we will start with its conclusion:
In sum, unlike a bare Summons that is jurisdictionally defective as to the defendant, here, the Summons validly conferred jurisdiction over [the defendant]. Ergo, to the extent the New Jersey Property claims are not before the court, such a lack of specific jurisdiction could be addressed on a motion to amend. In this instance, the relation back doctrine would save the subject claims from being time barred. For this reason, rather than waste the parties’ time and money with further motion practice, the court permits amendment of the Summons to definitively resolve any specific jurisdiction concerns. Amendment of the Summons is proper in the court’s discretion because Aspen’s substantial rights are not prejudiced.
In reaching this conclusion, the court reasoned:
CPLR 305(b) provides that if the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and the sum of money for which judgment may be taken in case of default. A summons served without a complaint must indicate at least basic information concerning the nature of plaintiff’s claim and the relief sought. However, CPLR 305(c) permits amendment and states at any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced. If the summons lacks the requisite detail, the action is jurisdictionally defective and, where personal jurisdiction is lacking, could not be amended and must be dismissed.
Here, it is undisputed that the Summons provides adequate notice with respect to the New York Property and its attendant breach of contract claim, but not for some of the claims dismissed at oral argument, the NFIA claim dismissed above, or the claims relating to the New Jersey Property. Nonetheless, there is no question that the court has personal jurisdiction over [the defendant] and that, regardless of the sufficiency of the Summons with respect to the New Jersey Property claims, this action will proceed. There also is no question that if there are no statute of limitations concerns, even if both the Summons and the complaint made no mention of the New Jersey Property, plaintiffs could still seek to assert the New Jersey Property claims by moving for leave to amend their complaint. Such an amendment would almost certainly be granted. Moreover, if there is a statute of limitations concern, the relevant inquiry is whether the claims sought to be asserted in the amended complaint may relate back to the original complaint under CPLR 203(f).
Here, the court is faced with a question of first impression: if an action is commenced by summons with notice, and the summons adequately contains the requisite detail with respect to some claims and a subsequently filed complaint includes additional claims not noticed in the summons, are the claims not set forth in the summons jurisdictionally deficient, regardless if they are sufficiently pleaded in the complaint? This question is complicated by the well settled principle that, unlike a complaint, if a summons is jurisdictionally defective, it may not be amended.
The court has reviewed the cases cited by the parties and conducted its own independent research of New York cases and the CPLR commentary. These sources do not provide a clear answer.
To resolve these questions, the court finds it instructive that a dismissal based on an inadequate summons with notice is a jurisdictional matter – that is, dismissal is mandatory because the court lacks jurisdiction. With respect to this point, there are different types of jurisdiction, such as general and specific, the former giving the court authority over a party, and the latter merely permitting the court to rule on a particular claim involving that party. Obviously, without jurisdiction over a party, no lawsuit can validly proceed. However, it is commonly the case that during the pendency of an action where the court has jurisdiction over a party in regard to certain claims, a party may seek leave to expand the scope of the court’s specific jurisdiction to amend to add additional claims. Absent prejudice, as noted above, the court has discretion pursuant to CPLR 305(c) to permit amendment. The standards for leave to amend are well settled. Leave should be granted when the proposed claim is not clearly devoid of merit and there is no prejudice to-the defendant.
With these principles in mind, the answer to the relevant question becomes apparent. As noted, the court has jurisdiction over [the defendant] and specific jurisdiction with respect to the New York Property claims. If plaintiffs’ complaint, like the Summons, did not mention the New Jersey Property claims, plaintiffs could, prior to the answer, as of right, amend to assert the New Jersey claims. If, then, Aspen contended that the New Jersey Property claims are time barred, the decision on whether to permit the amendment would turn on the applicability of the relation back doctrine. The relevant inquiry under CPLR 203(f) would be whether the original pleading gives notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. Here, specifically, the question would be whether pleaded claims for losses arising from a specific set of events gives fair notice to the insurer of the factual predicate for additional losses caused by the same underlying event when such losses are governed by the same insurance policy. That standard is clearly met in this case because the complaint addresses the New Jersey Property claims. Hence, if there was no issue with the Summons, leave to amend would be granted because the relation back doctrine would apply. Dismissal for inadequacy of the Summons is incongruous. Jurisdiction over [the defendant] exists; the insurance policy covering both the New York and New Jersey properties was noticed by the Summons as was Superstorm Sandy, the occurrence from which the damages allegedly arose; and the complaint, which was timely filed, made mention of the New Jersey property.
Moreover, a dismissal for failure to serve a sufficiently detailed summons would have no preclusive effect. And, while such a dismissal would not afford a plaintiff the benefit of the six month savings provision of CPLR 205(a), which cannot be used to resurrect the action if the case would become time-barred, here, the running of the statute of limitations is of no import due to the applicability of the relation back doctrine. As a result, even if dismissal of the New Jersey Property Claims was warranted at this juncture, dismissal would have no bearing on plaintiffs’ ultimate ability to prosecute that claim in this action. In other words, [the defendant’s] substantial rights are not implicated because the court’s jurisdiction over [it] is not uncertain. The only question is whether the court currently has specific jurisdiction over the New Jersey Property claims or if such specific jurisdiction will be acquired at a later date. No settled law or sensible public policy is served by requiring the parties and the court to expend further resources on this issue. To the extent the Summons needs to amended – a holding this court does not make and finds to be doubtful – the court, out of an abundance of caution, grants plaintiffs leave to amend the Summons to add the New Jersey Property breach of contract claim.
(Internal quotations and citations omitted) (emphasis added).