SAULO OTERO, RESPONDENT, v. THE NEW YORK CITY HOUSING AUTHORITY, APPELLANT.
94 N.Y.2d 800 (1999).
November 18, 1999
1 No. 168
[99 NY Int. 0151]
Decided
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Cynthia Holfester, for appellant.
Mark R. Bower, for respondent.
MEMORANDUM:
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. It 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, with costs, and certified question answered in the affirmative, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.
Decided