Markoff v. South Nassau Community Hospital, 61 N.Y.2d 283 (1984)
CPLR 205(a), the statute allowing for recommencement of an action after dismissal, requires that the initial action be timely commenced with proper service; an action dismissed for lack of personal jurisdiction due to improper service is not considered “commenced” for the purposes of the statute, even if the defendant had actual notice.
Summary
Plaintiff sued defendants for medical malpractice and wrongful death. The initial attempt at service was deemed invalid, and the ex parte order authorizing expedient service was vacated. After the statute of limitations had expired, the plaintiff properly served the defendants. The Court of Appeals held that CPLR 205(a) did not apply because the original action was never properly commenced due to the lack of valid service. The Court emphasized that actual notice to the defendant does not cure a failure to comply with the prescribed methods of service. Therefore, the action was time-barred.
Facts
Milton Markoff was treated at South Nassau Community Hospital by defendant doctors in October 1978. He died eight months later, allegedly due to the defendants’ malpractice. Plaintiff Ruth Markoff, individually and as executrix, attempted to commence an action for medical malpractice and wrongful death.
Procedural History
Plaintiff initially attempted service on July 14, 1980, which was unsuccessful. On March 19, 1981, plaintiff obtained an ex parte order authorizing expedient service. Summonses were left at the hospital for the defendant doctors on March 30, 1981. The defendants asserted lack of personal jurisdiction and moved to vacate the ex parte order, which was granted in May 1981. The action was terminated on September 23, 1981, for lack of personal jurisdiction. In late August and early September 1981, the plaintiff personally served the defendants. The defendants raised the statute of limitations as a defense. The plaintiff argued the answer was untimely and that CPLR 205 applied. The defendants successfully moved to vacate the default and to dismiss the action based on the statute of limitations. The Appellate Division affirmed the vacatur of the ex parte order and the dismissal of the complaint. The Court of Appeals then reviewed the case.
Issue(s)
Whether CPLR 205(a) applies to allow recommencement of an action when the initial action was dismissed for lack of personal jurisdiction due to improper service, even if the defendant had actual notice of the action.
Holding
No, because CPLR 205(a) requires that the initial action be timely commenced, and an action dismissed for lack of personal jurisdiction due to improper service is not considered “commenced” under the statute, regardless of actual notice.
Court’s Reasoning
The Court of Appeals reasoned that CPLR 205(a) allows a plaintiff to commence a new action within six months of the termination of a prior action if the prior action was “timely commenced.” The Court stated that an action is “commenced” when there has been service of a summons, but such service is only effective when made pursuant to the appropriate method authorized by the CPLR. The Court emphasized that “actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service.” The Court distinguished this situation from cases where the court had subject matter jurisdiction, noting that here, the lack of personal jurisdiction in the first action meant it was never properly “commenced.” The Court stated it was not creating a new exception to CPLR 205(a), but rather clarifying that a timely commencement is a condition precedent to invoking the statute. Because the ex parte order authorizing alternative service was vacated, the initial service was nullified, and the plaintiff’s later service occurred after the statute of limitations had run, barring the action.