OTERO v. NEW YORK CITY HOUSING AUTHORITY (1999)

Court of Appeals of New York.

Saulo OTERO, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant.

Decided: November 18, 1999

Wilson Elser Moskowitz Edelman & Dicker, L.L. P., New York City (Cynthia Holfester and Arnold Kideckel of counsel), for appellant. Mark R. Bower, New York City, and Louis Atilano for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

Plaintiff filed a summons and complaint in 1994. An index number previously secured and paid for by plaintiff with respect to his late-notice-of-claim application, was assigned to the action. In 1997, at the request of the County Clerk, plaintiff purchased a second index number, which was then re-assigned to the action.

Defendant moved to dismiss the action on the ground that plaintiff “never filed the summons and complaint pursuant to CPLR 304.” Supreme Court denied the motion and the Appellate Division affirmed, without opinion. The Appellate Division then granted leave to appeal.

Under the unique and opaque factual circumstances of this case, the fiscal underpinnings of the commencement-by-filing system do not support turning plaintiff out of his day in court.

Order affirmed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur in memorandum.

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