The New York Court of Appeals' decision today in Harris v. Niagara Falls Board of Educ. is a cautionary tale about civil procedure. It addresses the situation where a plaintiff fails to take the correct steps in commencing an action -- in this case, the plaintiff's failure to purchase a new index number sealed his fate.
The plaintiff was allegedly injured by a vehicle that was owned by the defendant. He failed to file a notice of claim within 90 days of the incident. As such, the plaintiff commenced a special proceeding to seek leave to file and serve a late notice of claim. In doing so, the plaintiff purchased an index number. The Court granted leave for the plaintiff to file and serve the notice of claim against the City of Niagara.
The plaintiff thereafter retained different counsel, who commenced a second special proceeding to seek leave to file and serve a late notice of claim on the City's school board and school district. The plaintiff's attorney used the same index number.
The plaintiff immediately thereafter initiated an action against the City, school district and school board by filing a summons and complaint with the Niagara County Clerk's office; however, the plaintiff used the same index number as was assigned to the previous late notice of claim applications. Soon after, the defendants moved to dismiss the complaint pursuant to CPLR 3211 as time-barred, claiming that the plaintiff's failure to purchase a new index number resulted in the action not having been properly commenced prior to the expiration of the statute of limitations.
The Court of Appeals agreed, holding that the plaintiff did not comply with the commencement-by-filing system in using an index number from a prior special proceeding.