Opinion
October 28, 1999
Sandra Holloway, plaintiff pro se.
Wallace D. Gossett, Brooklyn (Jamileh-Sofia di Guida of counsel), for defendant.
OPINION OF THE COURT
Defendant moves to dismiss plaintiff's claims, pursuant to CPLR §§ 3211 (a)(7) and 3014, for failure to state a cause of action. The pro se plaintiff's claims, prepared with the aid of a court clerk, are set forth on an endorsed complaint. Defendant's motion requires the Court to address an important question regarding the sufficiency of pleadings on endorsed complaints: "If [a] 'cause of action' . . . need not be stated in an indorsement pleading to the extent that it would have to be stated in a formal pleading, just how much will satisfy as an indorsement pleading?" Siegel, Practice Commentary, McKinney's Consolidated Laws of New York, Judiciary (Book 29A) — New York City Civil Court Act § 903, at 178.
The Endorsed Complaint and the Motion to Dismiss
On March 9, 1999, plaintiff filed a summons with endorsed complaint in New York County in the Civil Court of the City of New York. The summons indicates the damages sought ($50,000) and the date from which interest is sought (December 23, 1997), which by inference is the date of the events giving rise to the action. Further, the endorsed complaint specifically provides that:
"the nature and substance of the plaintiff's cause of action is as follows: 1st Cause of Action: $25,000 Damage Caused to Person; 2nd Cause of Action: $25,000 Loss of Time from Work.
Because plaintiff appeared pro se, the endorsement on the summons was made by the clerk, pursuant to CCA § 902 (a)(1). The source of the information for the endorsement was a form, entitled "Application for a Pro Se Summons," completed and signed by plaintiff. The form contains two sections: a section which identifies the "parties" and a section which identifies the "claim." The claim section requires that the pro se plaintiff indicate the "reason for [his or her] claim" by choosing from the following list of suggested claims, including a generic "other," designed to help the prospective plaintiff to accurately articulate, in writing, his or her cause of action:
The original application/form is made part of the Civil Court file.
Damage caused to: __ automobile __ person __ property other than automobile
Failure to provide: __ repairs __ proper __ goods ordered services
Failure to return: __ security __ property __ deposit __ money
Failure to pay for: __ wages __ services __ insurance __ rent __ commissions rendered claim __ money __ goods sold loaned and delivered Breach of: __ contract __ lease
Loss of: __ luggage __ property __ time __ use from work of property
Returned: __ check (bounced) __ merchandise (not reimbursed)
Other: (Be brief) _______________________________________________________
This form, used in all of the courts of the Civil Court of the City of New York, has been used to help pro se plaintiffs at least since 1992.
On her form/application, plaintiff checked the claims indicating "Damage caused to . . . person" and "Loss of time . . . from work," which the clerk then used to generate the summons with endorsed complaint in this action. No further allegations regarding the nature and substance of plaintiff's claims are set forth on the summons with endorsed complaint.
After filing its answer, defendant promptly moved to dismiss the complaint for failure to state a cause of action. In its motion, defendant's counsel describes the action as one "for personal injuries allegedly sustained by plaintiff on December 23, 1997," and expressly assumes that the plaintiff's action is based on a claim of "negligence." Relying upon CPLR §§ 3014 and 3211(a)(7), however, defendant argues that the complaint fails to "adequately state plaintiff's theory against" defendant. Specifically, defendant claims that plaintiff's allegations fail to "inform the defendant what it is alleged to have done to cause [plaintiff's alleged] damage" (i.e., the "who, what, when, where and how" of the accident). Defendant also argues that plaintiff's claimed damages ($50,000) exceeded the jurisdictional amount of Civil Court.
In response to defendant's motion, plaintiff cross-moved to amend her complaint to reduce her claimed damages to $25,000. In her affidavit, plaintiff set forth the following additional allegations regarding her claim: "I fell down 3 steps on the subway stairs due to the fact that I had to carry my son Kwan over water that was settled at the bottom of the step resulting in a torn menicul [sic] of Lt knee."
In reply and opposition, defendant consents to the downward amendment of the claimed damages. Although defendant originally moved to dismiss only for failure to "state a cause of action," defendant now argues, in its reply and opposition papers, that the action should be dismissed because plaintiff "has no cause of action." In support of the motion, however, defendant relies only upon the affirmation of counsel and does not submit an affidavit from a person with personal knowledge, or any other extrinsic evidence, except a weather report indicating that it was raining rather heavily on the day in question. In her affirmation, counsel argues that plaintiff failed to explain what "caused" her to fall, and failed to "produce some proof tending to show that the defendant created the dangerous condition causing injury to the plaintiff or had either actual or constructive notice of the dangerous condition." Counsel further argued that plaintiff herself failed to use reasonable care under the circumstances.
Discussion
Pleadings in Civil Court are primarily governed by Article Nine of the Civil Court Act. Generally, in civil court "all pleadings shall be formal pleadings, as in supreme court practice." CCA § 902 (a). The major exception to that general rule, however, is an exception which virtually eviscerates the rule — namely where "the plaintiff's cause of action is for money only," CCA § 902 (a)(1), the most common cause of action asserted in Civil Court.
In money-only actions, "the cause of action may be set forth by indorsement upon the summons" and the "indorsement shall consist of a statement of the nature and substance of the cause of action." Id. Further, should "the plaintiff . . . appear without attorney, such indorsement shall be made by the clerk." Id. Notably, should a party, having been served with an indorsement pleading, desire a formal complaint where none is required, he or she may move for an order, "direct[ing] the service and filing of a formal pleading," or the court may issue such an order sua sponte "in any case . . . at any time before judgment." CCA § 902 (2)(e).
Absent such an order, CCA § 903 provides that the CCA and/or CPLR "requirements . . . applicable to a formal pleading shall not be applicable to an indorsement pleading." The simple purpose of Section 903 is "to prevent any of the technicalities of pleading — and even some matters that are not mere technicalities — from being applied to an indorsement pleading." Siegel, Practice Commentary, McKinney's Consolidated Laws of New York, Judiciary (Book 29A) — New York City Civil Court Act § 903, at 176.
Thus, when a party utilizes a summons with endorsed complaint, he or she may properly dispense with, inter alia the separate numbering requirements of CPLR § 3014, and the particularity requirements of CPLR §§ 3015 and 3016. Nor would he or she be required to set forth the "material elements" of the asserted causes of action, or otherwise give "notice of the transactions, occurrences . . . intended to be proved," as required by CPLR § 3013 for formal pleadings. See generally Siegel, op. cit.,, at 176-178. See also Gaeta v. Home Box Office et al., 169 Misc.2d 500, 507 (Civil Court, N.Y. Co. 1996); cf. Oelkrug v. Gilwaldron Realty Co. Inc., 45 Misc.2d 160, 161 (App. Term, 2nd Dept. 1964) (where plaintiff asserted claim of malicious prosecution "failure to include in the endorsement on the summons an allegation that defendant lacked probable cause to commence the criminal prosecutions was not a fatal omission").
Instead, the only substantive pleading requirement of an indorsed complaint is that it shall set forth the "nature and substance of the cause of action" (CCA § 902[a][1]; Freliba, Ltd. v. Essential Dental Systems. Inc., N.Y.L.J., June 28, 1994, p. 25, col. 6 [App. Term, 1st Dept.]), which may be satisfied by setting forth a "summary statement of the cause of action," (Southern Boulevard Sound. Inc. v. Felix Storch. Inc., 167 Misc.2d 731, 732 [App. Term, 2nd Dept. 1996]; Kimma v. Chazen, 8 Misc.2d 589 [App. Term, 1st Dept. 1957] [under predecessor statute]), as long as it generally apprises the defendant of the claim. Carcione v. Rizzo, 154 Misc.2d 13, 14 (App. Term, 2nd Dept. 1992). See generally Picone v. Jacobs, N.Y.L.J., December 5, 1969, p. 17, cols 4-5 (Civil Court, New York Co.) ("'If . . . the few words (or even single word) used indicates in the most general way what the cause . . . is . . ., the indorsement pleading should be sustained'"; "'What section 903 seeks to do is to require for an indorsement the barest minimum — the terse sentence or even phrase that will merely enable the court to say that it gives the party a 'general idea' of what is being pleaded'") (quoting Professor Siegel's 1964 Practice Commentary).
The foregoing sufficiency standard for an endorsed complaint is analogous to the sufficiency standard for notices which must be attached to the summons (where the plaintiff does not serve the complaint with the summons) in supreme and county court actions, pursuant to CPLR § 305 (b). See Siegel, Practice Commentary, McKinney's Consolidated Laws of New York, Judiciary (Book 29A) — New York City Civil Court Act § 903, at 179.
CPLR § 305 (b) provides that "[i]f the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default."
Applying the foregoing standards, courts have sustained endorsed complaints which merely allege "defamation," Gaeta v. Home Box Office et al., supra, 169 Misc.2d at 507, "breach of contract, negligence and unjust enrichment," Skowron v. Manufacturers Hanover Trust Co., 150 Misc.2d 806 (App. Term, 2nd Dept. 1991); or which merely alleged that "the object of this action is to recover $10,000 damages for negligence," Picone v. Jacobs, N.Y.L.J., December 5, 1969, p. 17, cols 4-5 (Civil Court, New York Co.), or which allege that defendants "'fraudulently' obtained default judgments against plaintiffs in several prior actions, with knowledge that those proceedings 'were fraught with procedural irregularities and lacking personal jurisdiction,'"Southern Boulevard Sound. Inc. v. Felix Storch, Inc., supra, 167 Misc.2d at 732. See also In Rowell v. Gould, Inc., 124 A.D.2d 995 (4th Dept. 1986) (notice stating, "the nature of this action is negligence," is sufficient under CPLR § 305[b]);Viscosi v. Merritt, 125 A.D.2d 814 (3rd Dept. 1986) (same).
Further, even where courts have doubts regarding the sufficiency of an endorsed complaint, courts have refused to dismiss the complaint outright, opting instead to order plaintiff to serve and file a "formal complaint" pursuant to CCA § 902 (e). See e.g. Carcione v. Rizzo, supra, 154 Misc.2d at 14; Herman v. East Ramapo Central School District, 99 Misc.2d 696, 698 (Justice Court, Rockland Co. 1979).
Here, plaintiff described the nature of her claims as "$25,000 Damage Caused to Person" and "$25,000 Loss of Time from Work." Applying the aforementioned standard to the foregoing endorsement pleading, the Court finds that the complaint sufficiently sets forth, in "summary" fashion (Southern Boulevard Sound. Inc. v. Felix Storch, Inc., supra, 167 Misc.2d at 732), the "nature and substance of the cause[s] of action" (CCA § 903) to apprise defendant of the claims against which it must defend. Indeed, in its motion papers defendant manifested its awareness of the nature of the claim by acknowledging that it had inferred from the endorsed complaint that plaintiff was alleging that the "damage to person" was caused by defendant's "negligence."
Accordingly, the Court finds that the endorsement is sufficient. This result is wholly consistent with the intended purpose of CCA § 903, which is "to prevent any of the technicalities of pleading — and even some matters that are not mere technicalities — from being applied to an indorsement pleading." Siegel, Practice Commentary, McKinney's Consolidated Laws of New York, Judiciary (Book 29A) — New York City Civil Court Act § 903, at 176.
Contrary to defendant's contentions, plaintiff was not required, by its endorsed complaint, to "inform the defendant what it is alleged to have done to cause [plaintiff's alleged] damage" or to otherwise "produce some proof tending to show that the defendant created the dangerous condition causing injury to the plaintiff or had either actual or constructive notice of the dangerous condition." Nor was plaintiff obliged to allege facts in the endorsed complaint regarding the "who, what, when, where and how" of the accident.
Significantly, the summons with endorsed complaint here was duly prepared by the one of the clerks who properly relied upon a form completed by the pro se plaintiff. The plaintiff completed the form by identifying, from the available suggested choices, the claims which most accurately reflected her causes of action against defendant. Under these circumstances, "there is every additional reason not to hold the plaintiff to any formalities at all." Siegel, Practice Commentary, McKinney's Consolidated Laws of New York, Judiciary (Book 29A) — New York City Civil Court Act § 903, at 179.
Should defendant wish to obtain more detailed facts regarding plaintiff's claims, defendant's remedy, aside from commencing discovery, is to move for an order directing plaintiff to serve and file a "formal pleading," pursuant to CPLR § 902 (e). Indeed, that would be the remedy the Court would grant were the Court to entertain doubts about the sufficiency of the endorsed pleading here. Yet, at this time the Court declines to sua sponte direct the pro se plaintiff to file a formal complaint since plaintiff has already voluntarily provided additional details regarding her claim, the filing of a formal complaint may unnecessarily delay the expeditious resolution of this action and defendant has not expressly sought such relief. Defendant, of course, is granted leave to move for such relief at any time before judgment. CCA § 902 (e).
Accordingly, as indicated in its prior order dated October 15, 1999, the motion to dismiss is denied and the cross-motion to amend the damages clause is granted.