The Oswego County Supreme Court's April 13, 2011 decision in Ripka v. Fahey underscores the dangers of initiating a lawsuit using a Summons with Notice.
On August 24, 2010, Plaintiff commenced a legal malpractice action, stemming from an underlying divorce action, against three attorneys by filing a Summons with Notice. Plaintiff alleged that she did not receive her equitable portion of the marital estate because of the Defendants' negligence. Following service of the Summons with Notice, defense counsel each timely served a Notice of Appearance and Demand for Complaint upon Plaintiff. Plaintiff was then required to serve her Complaint within twenty days after service of the demands. CPLR § 3012 (b) allows for dismissal where the plaintiff fails to timely serve the Complaint.
Plaintiff did not respond to Defendants' Demands for a Complaint. Plaintiff failed to serve her Complaint within the required twenty days. Plaintiff never sought nor was granted an extension of time. Each defendant promptly moved to dismiss on the grounds that Plaintiff failed to timely serve her Complaint. After at least one defendant had moved for dismissal, Plaintiff attempted to untimely serve her Complaint. Service of the Complaint was rejected by each Defendant. Despite Plaintiff's opposition, the Court granted the Defendants' motions to dismiss the Complaint.
In its written decision, the Court cited the long-established rule that "to avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made . . . a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action." Fascano v. J.C. Penny Corp., 59 A.D.3d 1102 (4th Dep't 2009).
In opposition, Plaintiff asserted that she was unable to serve her Complaint because she did not have possession of her matrimonial file from prior counsel. The Court found that this was not a reasonable excuse because Plaintiff "failed to establish why possession of the matrimonial file was necessary and why she was unable to obtain it . . . . Plaintiff also failed to establish she made diligent effort to obtain the file." In the course of oral argument on the motions to dismiss, the Court explained that this "excuse" was undermined by the fact that Plaintiff was able to draft and serve her Complaint while the motions were pending, and that she was able to submit an affidavit, nearly forty paragraphs in length, in opposition to the motions. The Court also found that "failure to at least attempt to obtain an extension from any Defendant was not reasonable." Notably, at the time of oral argument, Plaintiff had still not succeeded in obtaining her matrimonial file from her prior attorney.
The Court also concluded that Plaintiff failed to establish a meritorious cause of action. The Court explained that Plaintiff's Affidavit of Merit and Complaint contained "numerous conclusory allegations" and "[v]ery few factual allegations." Plaintiff was unable to establish a prima facie case of legal malpractice against any of the Defendants. The Court found that even taking all of Plaintiff's allegations as true, which it is required to do in the context of a motion to dismiss, Plaintiff failed to establish that any of the Defendants was the proximate cause of any loss. Further, the Court found Plaintiff "failed to establish she suffered actual ascertainable damages."
Notably, the statute of limitations ran on Plaintiff's legal malpractice claims between the time she filed the Summons with Notice and when she served Defendants. Absent a successful appeal of the dismissal, Plaintiff is now left without recourse against Defendants.
Leading practice commentaries contain ample warnings of the risks associated with commencing a lawsuit using a Summons with Notice. Weinstein Korn & Miller's New York Civil Practice § 3012.15 details the potential grounds for dismissal: (1) insufficiency of the notice; and (2) failure to serve the Complaint as required by CPLR § 3012, and warns:
The plaintiff's attorney who elects to serve a CPLR 305(b) notice instead of a complaint will save some effort in the short run, but may ultimately pay a high price for the momentary convenience.
Although this method of commencement is permitted, Professor David Siegel strongly argues against it and suggests that a "bad complaint," amended as of right when the drafter has had a chance to reflect, is a far better choice than a Summons with Notice that runs the risk that the "notice" contained in the document is insufficient. David D. Siegel, New York Practice § 60, p. 87 (4th ed. 2005) Professor Patrick Connors explains that "[i]t takes precious little time to draft a bad complaint, and a bad complaint is much better to use, especially with the statute of limitations looming, than a CPLR 305(b) notice." Patrick M. Connors, McKinney's Consolidated Laws of New York, Annotated, Practice Commentaries CPLR 3012 (2010)
This case provides yet one more example of the dangers of using a permissible procedural shortcut. The case serves as a reminder to all practitioners that plaintiffs need to be fully aware of the risks of using a Summons with Notice and that defendants should carefully scrutinize any Summons with Notice because potential problems are prevalent.
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