Glitches and Mistakes—Should We Correct or Disregard Them?
The word "glitch," may have entered common usage during the early space program,1 and it usually means a minor or technical malfunction in a computer or electronic system.2 The New York State Courts Electronic Filing System (NYSCEF) allows for the commencement of actions or proceedings over the Internet, and glitches would appear to be inevitable. If we are to describe such missteps in the commencement process, "glitch" has a much nicer ring to it than "nonwaivable jurisdictional defect."
The Appellate Division, Second Department, recently found "glitches associated with the initiation of the new e-filing system," responsible for a plaintiff's commencement problem and permitted correction of the error pursuant to CPLR 2001. CPLR 2001 defines such minor (meaning correctable) issues as mistakes, omissions, defects or irregularities, and in Grskovic v. Holmes3 the court applied CPLR 2001 to forgive, nunc pro tunc, a pretty significant commencement by e-filing mistake.
Timing of Filing
Grskovic was an automobile accident case in which the plaintiff's counsel pursued settlement until only about a month and a half remained in the limitations period. Counsel then attempted to file the summons and complaint, but the papers were rejected because Westchester County recently had become a mandatory e-filing county.4 Upon learning of the problem, counsel established a temporary e-filing user account; electronically "purchased" an index number by inputting credit card information; and then "filed" the summons and complaint. Unfortunately, he transmitted the papers to the training system (not the "live system") 26 days before the statute of limitations expired. The mistake was discovered three days after the deadline.
The plaintiff then moved under CPLR 2001 for an order deeming the summons and complaint filed, nunc pro tunc, as of the date of the transmittal to the training system. The defendant opposed the application, arguing that the three-year statute of limitations had expired without any proper filing. The Supreme Court agreed with the defendant, holding the failure to file on the "live system" to be a non-curable jurisdictional defect.
The Appellate Division reversed, referencing the possible confusion that could occur with side-by-side practice and live systems,5 but primarily the court relied on the mission of CPLR 2001 to "cure error."6 The court noted that a 2007 amendment to CPLR 20017 was specifically intended to allow mistakes in the filing process to be corrected, and to overturn several Court of Appeals cases that had found filing missteps fatal.8
The legislative history makes clear that the amendment was not intended to "excuse the complete failure to file within the statute of limitations," which of course raises the question of the meaning of the verb "file." CPLR 304 provides that "filing shall mean the delivery" of the initiatory papers to "the clerk of the court in the county in which the action or special proceeding is brought." Thus, in the Grskovic case there was a "delivery," albeit to the wrong electronic place. The plaintiff's mistaken use of the training system certainly was a whopper of an error, but since jurisdictionally sufficient papers were timely sent to the NYSCEF website, a non-correctable "complete failure to file" did not occur.
CPLR 304 also states that "[s]uch filing shall not be accepted unless any fee required…has been paid[,]" language that appears to distinguish "filing," (i.e., "delivery") from the clerk's acceptance of that which has been delivered. Similarly, CPLR 2001 allows a filing mistake to be disregarded "…provided that any applicable fees shall be paid[,]" which also implies an intent to correct errors even after a filing mistake.
CPLR 2102 provides that a clerk "shall not refuse to accept for filing any paper presented for that purpose" unless "specifically directed to do so by statute or rules." Although the mandatory e-filing rules are an example of a case in which the clerk is specifically authorized to reject hard-copy papers, this provision evinces intent to maximize the probability that time-sensitive documents will make their way to the court's file, so that problems can be sorted out later.9 CPLR 2102 can be read as liberalizing filing opportunities, to avoid penalty to those who transmit jurisdictionally compliant (though otherwise defective) papers to the clerk before a deadline expires.
Correction or Disregarding
Though the result certainly seems well reasoned, the Grskovic opinion may be subject to criticism on the interesting distinction the court draws between the showing necessary to allow "correction" as opposed to "disregarding of errors." The court carefully analyzed CPLR 2001 to hold that "corrections" may be allowed "upon such terms as may be just," while defects or mistakes may be "disregarded" only if a "substantial right of a party is not prejudiced." The court interprets CPLR 2001 to provide that "a 'correction' of a mistake appears to be subject to a broader degree of judicial discretion without necessary regard to prejudice, whereas a complete 'disregarding' of a mistake must not prejudice an opposing party." For this reason the court found no need to address the defendant's argument that prejudice resulted from the expiration of the statute of limitations at the time the motion was made under CPLR 2001.
Although the court's analysis carefully parses the statutory language, the distinction between corrected and disregarded errors may pose future difficulties, because the effect of both actions is essentially the same—the mistaken party is allowed to proceed as if the mistake had not been made. Also, CPLR 2101(f), which addresses defects in form for interlocutory papers, contains similar language that may be read as treating "correcting" and "disregarding" with the same import.10
The court's effort to make this distinction also might be read as indicating that the expiration of the statute of limitations was itself the prejudice. But if this were so, then almost any mistake in filing could not be disregarded, which would be contrary to the stated intent of the 2007 amendment to CPLR 2001. Perhaps "prejudice" within the meaning of 2001 should relate to the practical impact of the mistake on the defendant, and since CPLR 304-b allows service to be delayed up to 120 days after filing, there was really no prejudice in the Grskovic case.
This interpretation is supported by Ruffin v. Lion Corp.,11 a 2010 Court of Appeals case in which a non-appearing defendant suffered a default judgment and then, two years later, challenged the personal jurisdiction for the judgment. The defendant had been served in Pennsylvania, but not by a person qualified to serve process there. The Court of Appeals found this to be a technical non-prejudicial defect that was subject to forgiveness under CPLR 2001. The court relied on the "principle of notice to the defendant," to determine whether the mistake was prejudicial, and since the defendant had received notice, it was not.