Opinion
No. 67021–2014.
02-04-2015
Jan FELD, Plaintiff, v. Jacob GINSBURG, Esq., Defendant.
Opinion
Upon reading the foregoing papers it is
ORDERED the motion is granted and the complaint is dismissed; and it is further
ORDERED the cross-motion is denied.
The plaintiff disputed the counsel fee charged by defendant and the matter proceeded to arbitration on August 25, 2014 (22 NYCRR Part 137). The notice of arbitration award and arbitration award ($6.6011.38) were mailed to plaintiff on September 2, 2014. On October 7, 2014, plaintiff commenced this action for de novo review (22 NYCRR 137.8 ).
22 NYCRR 137.8(a) provides, “[a] party aggrieved by the arbitration award may commence an action on the merits of the fee dispute in a court of competent jurisdiction within 30 days after the arbitration award has been mailed. If no action is commenced within 30 days of the mailing of the arbitration award, the award shall become final and binding.” The 30–day period is absolute and the court does not have discretion to excuse the late commencement of the action for de novo review (Gold, Stewart, Kravitz, Benes, LLP v. Crippen, 109 AD3d 919 [2d Dept 2013] ; Chase v. Scalici, 97 A.D.2d 25 [2d Dept 1983] ). Thus, plaintiff's action, which was commenced 35 days after the mailing of the notice of arbitration award, is dismissed as untimely.
Contrary to plaintiff's contention, his failure to timely commence the action is not “a mistake, omission, defect or irregularity” (CPLR 2001 ) the court can disregard or correct. The action was not timely commenced because counsel failed to e-file the complaint within 30 days of the mailing of the arbitration award (22 NYCRR 137.8 ). Thus, the action was not timely commenced due to law office failure, and not due to a “glitch” in the e-filing system. CPLR 2001 is “not intended to excuse a complete failure to file within the statute of limitations” (Grskovic v. Holmes, 111 AD3d 234, 243 [2d Dept 2013] [internal quotation marks and citation omitted).
The present case is distinguished from Grskovic v. Holmes, 111 AD3d 234 [2d Dept 2013] ). In Grskovic the plaintiff believed he had timely commenced the action because the County Clerk sent confirmation that the complaint had been e-filed before the statute of limitations expired. It was not until the statute of limitations expired that plaintiff was notified that the complaint had not been e-filed because he had unwittingly used a “practice system” in the early days of the implementation of the e-filing system in Westchester County. Here, the County Clerk rejected plaintiff's attempt to file a hard copy of the complaint and notified plaintiff before the expiration of the thirty-day period that the complaint had to be e-filed. Despite this timely notification plaintiff failed to e-file the complaint until after the expiration of the thirty-day period.