Practitioners may develop a false sense of security from a recent amendment of CPLR 304 that now defines the commencement of a special proceeding in the Supreme and County Courts as the filing of the petition alone. (Chapter 473, Laws of 2001, effective Nov. 21, 2001). Prior law defined commencement as the filing of a petition and either a notice of petition or order to show cause. For a petitioner who is racing to comply with the statute of limitations, the new approach appears at first glance to be a godsend because it seemingly tolls the statute of limitations upon the mere filing of the petition. Having complied with the statute of limitations, the petitioner would now seem to have some extra time within which to obtain an order to show cause or to arrange for a calendar-specific notice of petition for service on the respondent in accordance with CPLR 306-b.
But there is a major gap in the otherwise salutary legislation: No corresponding amendment was made to CPLR 203(c)(1), which still provides, in effect, that the statute of limitations is not tolled until the notice of petition or order to show cause is filed with the petition. Until this oversight is corrected (or the appellate courts provide some creative remedy), practitioners who, because of exigent circumstances, must commence a special proceeding on the eve of expiration of the statute of limitations are urged to proceed with extreme caution. Insofar as the statute of limitations is concerned, they can take no comfort whatsoever in the amended version of CPLR 304.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]