## Facts

- On May 30, 2008, Vinko Grskovic allegedly was injured in a motor-vehicle collision in Westchester County, New York, when his vehicle was struck by a vehicle owned and operated by James Cecere.
- Cecere later died, and Marguerite Holmes served as the estate’s representative (named in the caption as “etc.”).
- Westchester County Supreme Court required mandatory electronic filing for new actions beginning March 1, 2011.
- Grskovic retained counsel in 2010. Counsel prepared initiatory papers dated April 1, 2011 and wrote a $210 check intended to cover index-number and filing fees.
- Counsel attempted to have a process server purchase an index number and file the papers, but was informed that mandatory e-filing prevented that method of commencement.
- On May 4, 2011, counsel obtained a temporary NYSCEF user account and password. The email confirmation stated the account was created in the “Practice New York State EFiling System,” without clearly explaining that “Practice” referred to a training/simulation site rather than the court’s live filing site.
- On May 4, 2011, believing he was using the live system, counsel uploaded the summons and complaint in the NYSCEF practice (training) system and received confirmation/acknowledgement messages that appeared consistent with a completed filing.
- No index number issued. Counsel’s case manager repeatedly contacted the clerk’s office about the missing index number.
- On June 2, 2011—three days after the May 30, 2011 expiration of the three-year limitations period for personal injury claims—counsel learned the documents had been filed only in the NYSCEF practice system and that no action had been commenced in the live system.
- On June 2, 2011, Grskovic moved under CPLR 2001 to have the May 4, 2011 practice-system filing deemed a timely filing nunc pro tunc in the live system.
- Holmes opposed, arguing counsel lacked diligence and that she would be prejudiced because the statute of limitations had expired.
- Supreme Court denied the motion, and Grskovic appealed.

## Issues

1. Whether CPLR 2001 permits a court to correct a commencement-related e-filing mistake by treating a summons and complaint timely uploaded to the NYSCEF practice (training) system as filed nunc pro tunc in the live system.
2. Whether the defendant shows prejudice to a “substantial right” under CPLR 2001 when the claimed prejudice is primarily the loss of a statute-of-limitations defense.

## Decision

- The Appellate Division, Second Department reversed the order denying relief.
- The court granted Grskovic’s CPLR 2001 motion and directed that the action be deemed timely commenced as of May 4, 2011.
- The court treated the practice-system upload as a correctable filing defect in the method of commencement, not a complete failure to attempt commencement.
- The court held that Holmes did not show prejudice to a substantial right sufficient to bar CPLR 2001 relief.

## Legal Principles

- CPLR 2001 authorizes a court, in its discretion, to correct or disregard a “mistake, omission, defect or irregularity” in papers or procedure, including defects connected to commencement, if no substantial right of a party is prejudiced.
- After the 2007 amendment to CPLR 2001, courts have broader authority to cure technical filing errors; the key question is whether there was a timely, good-faith attempt to commence that went wrong due to a filing defect, as distinguished from a total failure to file initiatory papers.
- In the e-filing setting, a timely submission of a summons and complaint to the wrong NYSCEF environment (practice/training instead of live), coupled with confirmation messages that reasonably suggested completion, may be treated as a curable error when the filer acted promptly and in good faith to commence the action.
- “Prejudice to a substantial right” requires more than the opponent’s assertion that it would otherwise obtain dismissal on limitations grounds; the opponent must show concrete harm (for example, impaired ability to defend due to delay, loss of evidence, or similar case-specific harm).
- Nunc pro tunc relief may be appropriate under CPLR 2001 to deem the commencement date to be the date of the defective but timely filing attempt, where the defect is technical and correction does not harm a substantial right.

## Conclusion

Grskovic held that CPLR 2001 permitted nunc pro tunc correction of a timely but misdirected NYSCEF filing where counsel uploaded the summons and complaint to the system’s practice (training) site, reasonably believed the filing was effective based on system communications, acted with diligence once the problem surfaced, and the defendant failed to show prejudice to a substantial right beyond the loss of a limitations defense.


Grskovic v. Holmes, 111 A.D.3d 234 (2013)