R 305.Summons; supplemental summons, amendment.

Subd (a) replaces rules 45 and 48 and part of rule 54 of the RCP. It embodies only the portions of these rules that are not covered by the general provisions regarding form of papers in article 21. Thus, the caption requirements of CPLR rule 2101(c) cover all the matters enumerated in the first paragraph of RCP rule 45, except the statement of the county where plaintiff resides. The subscription requirement in RCP rule 45 is covered by CPLR rule 2101(d), which substitutes indorsement by the attorney for subscription. The second sentence of this subdivision is based upon CPA § 219. CPLR rule 3012 requires that a subsequent pleading asserting new or additional claims for relief be served upon a party who has not appeared in the same manner provided for service of a summons.

Subd (c) is the same as Federal rule 4(h) except that the word “summons” has been substituted for “process.” It accords with CPA §§ 105 and 109 and the rule that unsubstantial defects may be disregarded. Valz v Sheepshead Bay Bungalow Corp. (1928) 249 NY 122, 163 NE 124; Air Conditioning Training Corp. v Pirrote, 270 App Div 391, 60 NYS2d 35 (1st Dept 1946). Certain defects, actually unsubstantial, have been held to be jurisdictional under present law. See, e.g., Friedman v Prescetti, 199 App Div 385, 192 NY Supp 55 (1st Dept 1922) (insufficient papers on motion for order for service by publication, order vacated). This subdivision is designed to eliminate any vestige of a doctrine of strict construction and makes the only test one of “prejudice.” 1977 Recommendations of the Committee to Advise and Consult with the Judicial Conference on the Civil Practice Law and Rules:

The permissive language now contained in CPLR 305(b) (“the summons may Contain . . . ”) constitutes a serious trap for the unwary practitioner who is not familiar with the provisions of CPLR 3215(e) governing proof of default. Under that provision, absent proof of service of the summons and complaint, a 305(b) notice is needed to preserve Plaintiff’s right to obtain a default judgment ( McDermott v. Hoening, 32 A.D. 2d 838 (2nd Dept. 1969); see Weinstein-Korn-Miller, New York Practice ¶305.12; Homburger and Laufer, supra at 397-398). It is not clear whether and how a plaintiff who has served an unaccompanied summons without notice may, on his own initiative, serve the complaint, on the defendant who neither appeared nor made demand for the complaint. Pre-CPLR law was to the effect that plaintiff could not serve a complaint unless the defendant had demanded it. Gluckselig v. H. Michaelyan Inc., 132 Misc. 783 (Supreme, New York, 1928) aff’d main. 225 A.D. 666 (1st Dept 1928). However, in a recent case, Keyes v. McLaughlin,49 A.D. 2d 974 (3rd Dept 1975) the court pursuant to CPLR 3215(c) dismissed an action for failure to take proceedings for entry of a default judgment within one year after default on the theory that the plaintiff could have served a complaint without demand, thereby laying the foundation for entry of a default judgment. The court did not discuss pre-CPLR law to the contrary nor did it concern itself with the question how the complaint might have been served (see Homburger and Laufer, supra at 398-399). It should also be noted that a later First Department case seemed to confirm the traditional view that a plaintiff who serves the summons without complaint is under no obligation, at least for the purpose of avoiding a dismissal under CPLR 3012(b), to serve the complaint unless the defendant demands it ( Ardila v. Roosevelt Hospital, 55 A.D. 2d 557 (1st Dept 1976).

Under the proposed amendment the uncertainty now surrounding default practice under CPLR 305(b) and 3215(c), (e) would be avoided by the mandatory notice provision. That provision would be in harmony with modern notions of notice pleading. It would assure the defendant at least basic information concerning the nature of the plaintiff’s claim and the relief sought. In order to accomplish that aim the content of the mandatory notice would be clarified. The language of the rule which now requires a statement of “the object of the action and the relief sought” would be amended to provide instead for a brief recital of “the nature of the action and the relief sought.” The present verbiage could be misread as a redundancy denoting merely a requirement to specify the type of relief sought in terms of damages or other remedy. Such misreading led to the downfall of the plaintiff’s action in a negligence case where the court voided a summons served without complaint on the ground that it failed to disclose the object of the action, even though it set forth the damages demanded ( Arden v. Loew’s Hotels Inc., 40 A.D. 2d 894 (3rd Dept 1972).

A different kind of technical defect that may render an unaccompanied summons jurisdictionally void for default purposes is typified by A.J. Eckert Co. v. George A. Fuller Co.. Inc. (51 A.D. 2d 844, 3rd Dept 1976). In that case an application to the court for judgment by default was denied when the summons stated the object of the action (“claim for the balance due under a contract and damages for breach thereof ) but failed to set forth the sum for which judgment would be taken in case of default as required by CPLR 3215(b). To avoid mishaps of that sort the present requirement that ”in an action for a sum certain or for a sum which by computation can be made certain, the notice must state the sum of money for which judgment will be taken“ would be expanded to include any kind of action seeking monetary relief, whether liquidated or unliquidated. The sole exception would be an action to recover damages for medical malpractice where CPLR 3017(c) bars the pleader from stating the amount of damages sought. To require a statement of the sum to which the pleader deems himself entitled in the summons would flout the purpose of that statute.

The proposed amplification of language with respect to the statement of money damages, liquidated or unliquidated, reiterates more compactly the present practice. The language in rule 305(b) proposed to be deleted, which refers to actions for a sum certain, was derived from rule 46 of the former rules of civil practice, which provided for a short form of complaint for enumerated categories of contract actions (Weinstein-Kern-Miller, New York Civil Practice, ¶305.12). Chapter 749 of the Laws of 1965 amended Rule 305(b) to permit service of a notice, contained in the summons or attached to it, stating the object of the action and the relief sought, as well as the original notice where the suit was for a sum certain. Thus, under the present law, a notice may be served in any action. If the action is one involving liquidated damages, the sum certain or able to be made certain by computation must be stated in the 305(b) notice, in order to allow entry of a default judgment by the clerk ( CPLR 3215(a)). If the damages are unliquidated, the sum must be stated in the 305(b) notice, under the rubric of “relief sought” in order to satisfy the requirement of CPLR 3215(b) that the judgment by default “not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.” The same applies in an equitable proceeding, such as for specific performance or an injunction, where alternative or incidental money damages are demanded. In short, the proposed language serves as a reminder that a statement of the monetary relief sought in a summons served without complaint is always needed in order to protect plaintiff’s rights on default.

Matrimonial actions would be governed by analogous amendments to Domestic Relations Law, sections 211 and 232. Proposed amendments of these sections, designed to alert litigants to the requirement of specifying the nature of any ancillary relief sought, are discussed infra at page 67.

Finally, the question may be asked whether a deviation from the notice standards prescribed by rule 305(b), he proposed to be amended, would constitute a jurisdictional defect or a mere irregularity. The complete absence of any notice would certainly constitute a jurisdictional defect when the summons is not accompanied by the complaint (see McDermott v. Hoenig, 32 A.D. 2d 839 (2d Dept 1969)). In accordance with present practice, the court would have to determine whether a defective notice is correctable or, under the circumstances of a particular case, renders the summons jurisdictionally void for purposes of a default proceeding.

1996 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that parties be permitted to add a party to the action at any stage of the action, by leave of court or by stipulation of all parties, and once as of right within 20 days of service of the original summons or before the time to respond to the summons has expired or within 20 days of service of a pleading responding to it. Current law requires an application to the court to add new parties at any time in the course of the action.

This measure would amend both CPLR 305(a) and CPLR 1003 to provide that parties may be added once, by amendment as of right within 20 days after service of the original summons or at anytime before the period for responding to that summons expires or within 20 days after service of a pleading responding to it. This amendment to CPLR 1003 tracks the language of CPLR 3025(a). Parties may also be added at any stage of the action pursuant to a stipulation of all parties who have appeared, by the filing of a supplemental summons naming the party to be added. This amendment to CPLR 1003 tracks the language of CPLR 3025(b) governing amendments of pleadings without leave of court.

The Committee believes that unnecessary motion practice will be avoided by allowing parties to add a new party to an action initially as of right, and thereafter by stipulation, without the need for a motion, thereby benefitting both litigants and the courts.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1965, ch 749, § 1; L 1973, ch 238, § 2; L 1978, ch 528, § 1, eff Jan 1, 1979; L 1992, ch 216, § 5; L 1996, ch 39, § 1, eff April 2, 1996.