Commercial Division Blog
Uploading of Incorrect Commencing Document In E-Filing System Was Correctable Error Under CPLR 2001
On March 28, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in McCord v. Ghazal, 2014 NY Slip Op. 24086, ruling that the plaintiffs' mistaken uploading of the wrong complaint upon commencing an action through the New York State Courts Electronic Filing System could be corrected pursuant to CPLR 2001, and the proper pleading would be deemed filed nunc pro tunc as of the original commencement date.
In McCord, the plaintiffs commenced an action through the e-filing system and received a confirmation notice for the filing of a Summons With Notice. Although the notice gave the correct caption and index number, the actual commencing document the plaintiffs' counsel had uploaded was a summons and complaint from another action against different defendants. The next day, the correct summons with notice was served on the defendant, and the plaintiffs subsequently filed an affidavit of service. A month later, upon recognizing their error, plaintiffs e-filed the correct summons with notice. However, by that point, the statute of limitations on the claim had apparently run. The defendant moved to dismiss the action, arguing that the filing of commencement papers is necessary to invoke the court's jurisdiction, and because the summons and complaint that was initially filed did not identify the defendant, no action had been commenced against him, and the service of the summons with notice was therefore a nullity. The plaintiffs countered that "the defendant ha[d] not alleged any prejudice from the filing error, and it should be corrected or disregarded pursuant to CPLR 2001," which provides:
At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid.
To resolve the motion, Justice Demarest had to determine whether, in light of the improper commencement of the action, the court had subject matter jurisdiction to correct or disregard the error under CPLR 2001. She concluded that, under the circumstances of this case, the filing error did not deprive the court of jurisdiction:
Although the immediate issue of the court's disputed subject matter jurisdiction, based upon the uploading of an incorrect commencing document in New York's new e-filing system, does not appear to have been directly addressed by any court, the Appellate Division Second Department has recently articulated that the courts are permitted to correct a mistake caused in large part, by the glitches in the new e-filing system and counsel's unfamiliarity with it. Upon review of the e-filed confirmation document issued to plaintiffs' counsel on November 11, 2013, and the documents submitted in support of and in opposition to the motion, it is clear that on November 11, 2013, plaintiffs' counsel electronically commenced a new action, properly identified [the defendant] in the e-filing system, paid the proper fee for an index number, uploaded a document identified as a "summons with notice" in the e-filing system, served [the defendant] with the proper Summons With Notice the following day, properly uploaded an affidavit of service for the Summons With Notice with the corresponding index number purchased, and promptly uploaded the correct Summons With Notice upon learning of the initial filing error. Further, even the Kings County Clerk, which reviewed the Initial Filing on November 11, 2013, did not notice the error or notify the plaintiffs that a correction was necessary as is their standard procedure pursuant to the Kings County Supreme Court Protocol on Courthouse Procedures for Electronically Filed Cases (Revised February 17, 2012). The only error in commencing this action was the selection of the wrong file on plaintiffs' counsel's computer when prompted by the e-filing system to select the file to be uploaded. Accordingly, the plaintiffs' counsel's uploading of the Summons With Notice was performed in a mistaken manner and method and, pursuant to CPLR 2001, the court may correct the mistake. Alternatively, since defendant has not articulated any prejudice that would result, the Court may be required to disregard the error court permitted to disregard plaintiff's error.
Defendant's contention that this court does not have subject matter jurisdiction to address the filing error, pursuant to CPLR 2001, is unavailing. In Goldenberg [v. Westchester County Health Care Corp., 16 N.Y.3d 323 (2011),] the Court of Appeals held that it was the plaintiff's "complete failure to file within the statute of limitations" which prohibited the trial judge from correcting or disregarding an error pursuant to CPLR 2001. However, the Court specifically noted that it, "[did] not address whether the trial judge would have possessed discretion under CPLR 2001 to make allowances for or ignore the differences between the proposed and served complaints if a summons had, in fact, been filed" [Goldenberg, 16 N.Y.3d at 328 n.4]. Although defendant cites to Miller [v. Waters, 51 A.D.3d 113] for the assertion that, "[CPLR 2001] was not intended to allow courts to create subject matter jurisdiction where it does not exist," [id. at 117], in Macleod [v. County of Nassau, 75 A.D.3d 57 (2d Dep’t 2010)], the Appellate Division, Second Department specifically noted the holding in Miller and found that where a plaintiff improperly filed a complaint in a separate proceeding, and failed to pay the filing fee or obtain an index number, as is required pursuant to CPLR 304, the court maintained subject matter jurisdiction. [See MacLeod, 75 A.D.3d at 65]. Further, the remaining cases cited by defendant, where it was determined that a court did not have subject matter jurisdiction, are distinguishable from the present action as those commencing parties completely failed to file a pleading, as opposed to the present action in which the plaintiffs mistakenly selected an incorrect file when uploading the pleading.
This case is a cautionary tale for all commercial litigators to exercise care in using the e-filing system. Counsel should not assume that the clerk's office will correct mistakes, which, especially when made at the commencement stage, can have serious consequences.