First-in-Time Analysis Under CPLR 3211(a)(4) Based on Filing of Summons With Notice

On January 12, 2017, Justice Rosenbaum of the Monroe County Commercial Division issued a decision in Quatro Consulting Group, LLC v. Buffalo Hotel Supply Co., Inc., 2017 NY Slip Op. 27032, holding that an action commenced by filing of a summons with notice was first-in-time for purposes of CPLR 3211(a)(4) even though the complaint in the later-filed action was filed first, explaining:

CPLR 304 states an action is commenced by filing the summons and complaint or summons with notice.

. . .

Here, BHS commenced its action by filing the summons with notice in Erie County at least six days prior to Quatro commencing its action in Monroe County. The belated verification and assignment of an Index Number by the Erie County Clerk through its efiling systems should not disrupt the first-in-time filing rule.

However, Jeremy Sher, Esq. counsel for Quatro Consulting in reply submits that the Erie County filing was actually not the "first-in-time" since the filing of a summons with notice only, and not the complaint does not constitute another action pending. Counsel cites several cases from the First and Second Departments which held that CPLR 304 does not mandate dismissal as a "prior action pending" where a complaint has not been served. In these two actions, the parties, unlike here, were seeking a divorce. In Wharton which cited to Graev, the husband sought dismissal under CPLR 3211(a)(4) defensively after the wife commenced an action seven years after he initially filed but did nothing. The Court dismissed the prior action pending argument. In Graev the Court stated, merely because defendant commenced his action first by serving and filing a summons with notice (CPLR 304) does not mandate dismissal as a prior action pending in the absence of service of a complaint. The Appellate Court did not find that the trial court abused its discretion in making its determination as CPLR 304 does not mandate dismissal. Rather, the Appellate Court stated that in the exercise of their discretion they were making the determination.

The other two cases, also from other Appellate Division, cited by Quatro held that the filing of a summons with notice, absent the service of the complaint does not constitute commencement under CPLR 3211(a)(4). In Security, the Court, following CPLR 304, held that in the Supreme Court, an action is commenced upon the filing of the summons and complaint not the service thereof.

In review of those cases, it is unclear why the Appellate Courts did not follow the clear statutory language, that an action is commenced by filing a summons and complaint or summons with notice. The statute is clear that commencement occurs with either the filing of the summons and complaint, or the filing of a summons with notice. The Fourth Department in a factually similar case and filing scenario made such a determination that the filing of a summons with notice was commencement. Although Counsel Sher in opposition points out that the Varney holding has not been cited in any subsequent reported Appellate Division cases, it has not been reversed either. Our Department's holdings are binding on this Court. Moreover, this Department applied the literal language of CPLR 304 which provides that the filing of a summons with notice constitutes commencement.

Accordingly, pursuant to CPLR 304 and Varney BHS was first-in-time to commence its action in Erie County. The delay caused by the electronic filing should not hinder the first-in-time filing.

(Internal quotations and citations omitted).