           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1123
CA 15-00574
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


JAVELL FOX, PLAINTIFF-RESPONDENT,

                      V                           MEMORANDUM AND ORDER

CITY OF UTICA, DEFENDANT-APPELLANT.


WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (ZACHARY C. OREN OF
COUNSEL), FOR DEFENDANT-APPELLANT.


     Appeal from an order of the Supreme Court, Oneida County (Patrick
F. MacRae, J.), entered September 22, 2014. The order, among other
things, denied defendant’s motion to dismiss plaintiff’s claim.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, defendant’s motion is
granted and the claim is dismissed.

     Memorandum: Plaintiff filed a verified claim in this action and,
before answering, defendant filed a CPLR 3211 motion to dismiss,
contending that plaintiff had “yet to file a Summons or a Complaint”
and that “a complete failure to file is a jurisdictional defect.”
Relying upon CPLR 2001, Supreme Court deemed the claim to be a
complaint and excused the failure to file a summons as “an
irregularity that shall be disregarded in this case.” That was error.
We agree with defendant that CPLR 2001 does not permit a court to
disregard the complete failure to file a summons, i.e., an initial
paper necessary to commence an action (see Goldenberg v Westchester
County Health Care Corp., 16 NY3d 323, 328; O’Brien v Contreras, 126
AD3d 958, 958-959). As recognized by the Court of Appeals in quoting
from the Senate Introducer’s Memorandum in support of the bill that
amended CPLR 2001, the statute may be invoked as a basis to correct or
clarify “ ‘a mistake in the method of filing, AS OPPOSED TO A MISTAKE
IN WHAT IS FILED’ ” (Goldenberg, 16 NY3d at 328 [capitalization in
original]).




Entered:    November 13, 2015                   Frances E. Cafarell
                                                Clerk of the Court
