Legal Memorandum: Filing or Amending a Civil Suit in NY

Issue: In New York, what is the procedure for filing or amending a civil suit?

Area of Law: Litigation & Procedure
Keywords: Filing or amending a civil suit; Procedural rules; Dismissal without prejudice
Jurisdiction: New York
Cited Cases: 419 N.Y.S.2d 967; 488 N.Y.S.2d 6; 638 N.Y.S.2d 472; 225 A.D.2d 326; 47 N.Y.2d 990; 161 A.D.2d 638; 696 N.Y.S.2d 48; 393 N.E.2d 1040
Cited Statutes: N.Y. C.P.L.R. 306–a(a); C.P.L.R. 306–b, 306–a(b); C.P.L.R. 3025; C.P.L.R. 305(c)
Date: 08/01/2000

New York Civil Practice Law and Rules prescribe the procedure for the commencement of a civil action and issuance and service of a summons and complaint.  When everything goes according to procedure, the plaintiff’s (or third-party plaintiff’s[1]) action commences by the filing of the summons and complaint with the clerk and the payment of a fee, which triggers the assignment of an index number.  N.Y. C.P.L.R. 306–a(a).  The plaintiff then has 120 days within which to serve the summons and complaint on the defendant.  C.P.L.R. 306–b.

Failure to comply with the procedural rules may result in dismissal.  For instance, if the plaintiff fails to pay the filing fee within 30 days of filing the summons and complaint, the person who paid the fee for the plaintiff may seek an order dismissing the action without prejudice. C.P.L.R. 306–a(b).  Similarly, C.P.L.R. 306–b provides that failure to serve the summons and complaint within the 120‑day period after filing is grounds for dismissal without prejudice.  As a general matter, if the court dismisses an action for failure to comply with the procedures for initiating and serving an action, the dismissal is without prejudice.  Cf. Mont v. Goldman, 174 Misc. 2d 857, 666 n.Y.S.2d 386, 387 (Sup. Ct. 1997) (the penalty for procedural noncompliance under former version of C.P.L.R. 306–b was dismissal without prejudice).  When a dismissal “is silent as to prejudice, it is deemed to be not on the merits . . . and it is without prejudice to the filing of a new action.”  […]

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