Gershel v. Porr
| Decision Date | 19 December 1996 |
| Citation | 653 N.Y.S.2d 82,89 N.Y.2d 327,675 N.E.2d 836 |
| Parties | , 675 N.E.2d 836 In the Matter of Christopher P. GERSHEL, Appellant, v. Harry PORR III, as City Manager of City of Newburgh, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
The issue on appeal is whether petitioner satisfied the requirements of New York's commencement-by-filing system in this special proceeding. Because petitioner withdrew the originally filed order to show cause and thereafter served a notice of petition on respondent without filing a new set of initiator papers and paying an additional filing fee, we hold that petitioner never properly commenced the special proceeding and the attempted service was a nullity.
On May 9, 1994, petitioner, Police Chief of Newburgh, was charged with misconduct by respondent, City Manager of Newburgh, based on allegations that petitioner used the City's telephone and cellular phone for private calls without authorization and without thereafter paying for the calls. Petitioner was suspended from his job without pay pending an administrative hearing, and, as a result of scheduling problems, a hearing on the charges was adjourned several times. Under Civil Service Law § 75, the period of petitioner's suspension without pay could not exceed 30 days, or until June 8, 1994. The City thereafter restored petitioner to the payroll effective June 30, 1994--not June 8th--withholding petitioner's wages for the three-week period of June 8th to June 30th as a setoff for money allegedly owed to it by petitioner for prior unauthorized absences.
Petitioner subsequently instituted a CPLR article 78 proceeding on July 12, 1994, by filing an order to show cause and verified petition with the Clerk of Orange County Supreme Court, seeking compensation for the disputed three-week period. On July 21, 1994, respondent moved to dismiss the order to show cause and petition for lack of personal jurisdiction pursuant to CPLR 3211(a)(8), asserting that service was not made on an authorized person. On July 27, 1994, Supreme Court ordered a traverse hearing to determine if service had been properly made. At the calendar call of August 19, 1994, the date of the scheduled traverse hearing, counsel for petitioner declined to go forward with the hearing, stating that he would withdraw the order to show cause and re-serve the petition on respondent. The court marked the order to show cause "dismissed." That same day, petitioner recast the order to show cause as a notice of petition and served it along with the petition on respondent, the papers bearing the same index number as the originally filed order to show cause.
On September 6, 1994, respondent again moved to dismiss for lack of jurisdiction, this time based on petitioner's noncompliance with the filing requirements of CPLR 304 and 306-a by failing to purchase a new index number in conjunction with the notice of petition and petition served on August 19th. Supreme Court denied respondent's motion to dismiss, concluding:
Thereafter, respondent answered the petition and petitioner submitted a reply. Supreme Court ultimately entered judgment in petitioner's favor.
On appeal from Supreme Court's judgment, the Appellate Division reversed and dismissed the proceeding. The Appellate Division held that:
(226 A.D.2d 636, 637, 641 N.Y.S.2d 382 [citations omitted] .)
This Court granted petitioner's motion for leave to appeal and we now affirm.
In 1992, the Legislature converted New York civil practice in the Supreme and County Courts from a commencement-by-service to a commencement-by-filing system (L. 1992, ch. 216). Thus, in Supreme and County Court practice, the Legislature made the payment of a filing fee and the filing of initiatory papers the acts that commence an action or a special proceeding (see, CPLR 304, 306-a; see generally, Matter of Spodek v. New York State Commr. of Taxation & Fin., 85 N.Y.2d 760, 763, 628 N.Y.S.2d 256, 651 N.E.2d 1275). Under the new filing system, service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced (see generally, Siegel, N.Y. St L Dig No. 390, at 2-3 [June 1992] ). The filing system does confer a significant benefit on petitioners and plaintiffs by making the simple task of filing the act that marks "interposition" of the claim for Statute of Limitations purposes (see, CPLR 203[c][1] ), with a follow-up grace period within which to effect service. Thus, in a special proceeding with a Statute of Limitations of four months or less, such as a CPLR article 78 proceeding (see, CPLR 217), the petitioner, after the initial filing, has until 15 days after the expiration of the Statute of Limitations to effect service and file proof of service with the court (see, CPLR 306-b[a]; cf., id. [in an action, plaintiff has 120 days from the initial filing to effect service and file proof of service] ).
By the same token, an...
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