On July 1, 2022, Justice Crane of the New York County Commercial Division issued a decision in Worldview Entertainment Holdings Inc. v. Woodrow, 2022 NY Slip Op. 32080(U), dismissing third-party claims as time-barred because of the failure to file the third-party summons and complaint, explaining:
It is undisputed that Woodrow did not file a third-party summons with the clerk of the court until February 18, 2021. A third-party action is commenced by filing a third-party summons and complaint with the clerk of the court in the county in which the main action is pending. Accordingly, Woodrow’s breach of fiduciary duty, corporate waste, and tortious interference with business relations claims are time-barred.
Woodrow argues that he timely brought these claims because he served the Revised Amended Answer on May 11, 2016. The court granted in part Woodrow’s motion to amend his answer in the May 2016 order and stated that the Revised Amended Answer shall be deemed served on the parties upon service of a copy of this Order with notice thereof. Woodrow asserts that he timely commenced these claims more than two years prior to the expiration of the statute of limitations on December 4, 2018. This argument is without merit.
First, the court directed in the May 2016 order that the Revised Amended Answer shall be deemed served on the parties upon service of a copy of this Order with notice thereof. Conners and Cestone were not parties to the action when the order was entered. The Appellate Division noted that Woodrow had yet to file a third-party summons and complaint against Conners and Cestone with the clerk of the court as of December 2020.
Even if the pleading is deemed served on Conners and Cestone as of May 11, 2016, the statute of limitations is not keyed to the service of the pleading. The limitations period is the time in which an action must be commenced. While courts have discretion to waive other time limits for good cause, the Legislature has specifically enjoined that no court shall extend the time limited by law for the commencement of an action. As noted, a third-party action is commenced by filing a third-party summons and complaint.
Woodrow contends that this is a technical issue that the court should disregard under CPLR 2001. CPLR 2001 states:
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.
Woodrow argues that the court should overlook this problem because neither Conners nor Cestone would be prejudiced. The court lacks that discretion under CPLR 2001. In Goldenberg v Westchester County Health Care Corp. (16 NY3d 323, 328 [2011]), the Court of Appeals held that a plaintiff’s failure to file a summons in conjunction with the filing of a petition for leave to serve a late notice of claim was not subject to correction under CPLR 2001 and granted the defendant’s motion to dismiss the action as untimely. The Court relied on the legislative history of the 2007 bill that amended CPLR 2001, noting that the introducer’s memorandum in support of the bill emphasized that the amendments were not intended to excuse a complete failure to file within the statute of limitations. The Goldenberg court also highlighted the following language from the memorandum:
in order to properly commence an action, a plaintiff or petitioner would still have to actually file a summons and complaint or a petition. A bare summons, for example, would not constitute a filing. The purpose of this measure is to clarify that a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED, is a mistake subject to correction in the court’s discretion.
The Goldenberg Court concluded that given the absence of a summons, there was a complete failure to file within the statute of limitations, which CPLR 2001 does not allow the court to disregard.
Here, Woodrow asks the court to disregard a defect in what he filed, as opposed to a mistake in the method of filing. The court does not have the discretion to correct or disregard this type of error. Woodrow also argues that Cestone waived this defense by acknowledging service of the relevant pleading. In this regard, Woodrow apparently argues that lack of personal
jurisdiction is a waivable defense. However, the court lacks subject matter jurisdiction where the party failed to file the summons and/or compliant, and lack of subject matter jurisdiction cannot be waived.. . .
(Internal quotations and citations omitted) (emphasis added).
The court rejects Woodrow’s argument that his third-party claims relate back to the date of service of the Revised Amended Answer for statute of limitations purposes pursuant to CPLR 203 (c). CPLR 203 (c) provides: in an action which is commenced by filing, a claim is interposed when the action is commenced. It does not mention the date of service.