89 N.Y.2d 714, Fry v. Village of Tarrytown

Citation:89 N.Y.2d 714, 658 N.Y.S.2d 205
Party Name:Fry v. Village of Tarrytown
Case Date:March 27, 1997
Court:New York Court of Appeals

Page 714

89 N.Y.2d 714

658 N.Y.S.2d 205

In the Matter of Mark FRY, Appellant,


VILLAGE OF TARRYTOWN et al., Respondents.

New York Court of Appeals

March 27, 1997.

[658 N.Y.S.2d 206] Chadbourne, O'Neill, Thomson, Whalen & Fitzgerald, North Tarrytown (Dennis M. Fitzgerald, of counsel), for appellant.

Jeffrey S. Shumejda, North Tarrytown, for respondents.



Petitioner failed to comply with the CPLR commencement-by-filing system when, after paying the filing fee, he filed only an unexecuted order to show cause and petition with the clerk of the court, but did not file a signed copy of the order. However, we conclude that this threshold filing defect does not authorize a sua sponte dismissal of the special proceeding because respondents appeared in the proceeding and litigated its merits without raising this objection.

Petitioner owns a parcel of real property in the Village of Tarrytown. In June 1993, petitioner applied to respondent Zoning Board of Appeals of the Village of Tarrytown for a variance to confirm a preexisting nonconforming use of the premises. The Board denied the application.

Petitioner then sought to institute this CPLR article 78 proceeding to annul the Board's determination. On March 7, 1994, the day before the 30-day Statute of Limitations was to expire (see, Village Law § 7-712-c[1] ), counsel for petitioner delivered a proposed order to show cause, a petition, and a Request for Judicial Intervention (RJI) form to the Westchester County Clerk and paid the requisite filing fee (see, CPLR 304, 306-a). The clerk separated the proposed order from the petition, returned the petition, and accepted the proposed order and RJI for filing. Petitioner's counsel submitted a second copy of the proposed order to show cause, petition, and RJI to the motion support office, which assigned the matter to a Justice. Petitioner's counsel then brought the papers to the assigned Justice's law clerk. The proposed TRO was struck, a return date and date for service were inserted, and the order was signed by the assigned Justice. Neither the original nor a conformed copy of the executed order to show cause was filed with the clerk of the court before the court rendered a decision on the petition.

Petitioner served conformed copies of the executed order to show cause and the petition on respondents. Respondents answered the petition but failed to assert any objection based on defects in commencement or lack of personal jurisdiction, and thereby appeared in the proceeding and submitted to the court's jurisdiction (see, CPLR 320[b] ). Supreme Court thereafter denied the petition and dismissed the proceeding, holding that "the filing of the blank order to show cause does not commence a proceeding under CPLR 304 and, therefore, no jurisdiction was acquired over respondents." The Appellate Division affirmed, agreeing with Supreme Court that the filing of the proposed order to show cause did not satisfy the requirements of CPLR 304. The Court also rejected petitioner's argument that the law clerk's retention of the executed order to show cause should be deemed a filing with the clerk of the court. We granted leave to appeal and now reverse.

Petitioner filed only a proposed order to show cause with the clerk of the court. Since an unexecuted order to show cause is of no legal effect (cf., CPLR 2214[d]; 2219[a] ), its filing did not satisfy the provision of the commencement-by-filing statute requiring petitioner to file an order to show cause or a notice of petition along with the petition (CPLR 304; see, Alexander, 1996 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C403:1, 1997 Pocket Part, at 190 ["CPLR 304 requires the filing of an order to show cause, and a proposed order to show cause is just that--a proposal"] ). In addition, petitioner's [658 N.Y.S.2d 207] argument that the law clerk's retention of the papers should be deemed a filing with the clerk is unpersuasive; a law clerk is neither the clerk of the court nor an agent designated by the clerk of the court to accept filing (see, CPLR 304; County Law §§ 525, 909 [County Clerk is the clerk of both Supreme and County Court]; see also, Siegel's Prac Rev No. 49, at 3-4 [Sept. Extra 1996] ). Therefore, petitioner's failure to file the proper papers with the clerk of the court, and the attendant failure to properly commence the special proceeding, rendered the proceeding subject to dismissal (see, Matter of Gershel v. Porr, 89 N.Y.2d 327, 332, 653 N.Y.S.2d 82, 675 N.E.2d 836; Matter of Vetrone v. Mackin, 216 A.D.2d 839, 841, 628 N.Y.S.2d 866).

Although respondents appeared in the proceeding without asserting the improper filing as a defense in their answer, Supreme Court dismissed on this ground sua sponte. On appeal, petitioner contends that Supreme Court was without authority to dismiss the proceeding on its own motion. Respondents counter that Supreme Court properly raised the issue sua sponte because without a proper filing the court lacked subject matter jurisdiction of the proceeding.

The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it (see, Hunt v. Hunt, 72 N.Y. 217, 230 ["jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action"] ). In our State court system, "Supreme Court is a court of original, unlimited and unqualified jurisdiction" (Kagen v. Kagen, 21 N.Y.2d 532, 537, 289 N.Y.S.2d 195, 236 N.E.2d 475; see, N.Y. Const, art VI, § 7) and "is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed" (Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793, 225 N.E.2d 503). It is beyond dispute that Supreme Court has subject matter jurisdiction of this CPLR article 78 proceeding insofar as it involves a challenge to the determination of a village zoning board (see, Village Law § 7-712-c; CPLR 7804[b] ). The specific question on appeal is whether commencement of an action or special proceeding in precise conformity with the dictates of the filing system is required before a court has the power to adjudicate the case, when subject matter jurisdiction otherwise exists and when personal jurisdiction over the parties has otherwise been obtained. If strict compliance with the filing system were deemed a requirement of subject matter jurisdiction, we would conclude that Supreme Court properly dismissed the proceeding sua sponte because a court's lack of subject matter jurisdiction is not waivable, but "may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action" (Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 324, 19 N.E. 625).

A review of the statutory language and the structure of the filing system, considered in light of its purpose and historical antecedent, compels the conclusion that respondents waived their objection to the defective filing. Turning first to the statutory language, it is significant that none of the provisions of the filing statute purport to limit or condition Supreme Court's "competence" to entertain particular categories of actions (see, CPLR 203, 304, 306-a, 306-b). "Not even the catchall word 'jurisdiction' appears in the statute, much less an explicit limitation on the court's competence to entertain the action" (Lacks v. Lacks, 41 N.Y.2d 71, 75, 390 N.Y.S.2d 875, 359 N.E.2d 384).

Aside from the absence of an express statutory limitation on the courts' subject matter jurisdiction, the purpose and the structure of the filing requirements likewise do not evince an implicit limitation on subject matter jurisdiction. The Legislature's main reason for converting from a commencement-by-service to a commencement-by-filing system was to raise money for the State coffers, which is accomplished by requiring the payment of a filing fee when an action is commenced (see, Assembly Mem in Support and Senate Mem in Support, Bill Jacket, L. 1992, ch. 216 ["this legislation ensures that the revenue contemplated by the 1991 addition of CPLR 306-a will be realized"] ). In this [658 N.Y.S.2d 208] case, petitioner paid the requisite filing fee; the defective filing related only to the sufficiency of the filed papers, so the court's principal interest in the filing system was satisfied (see, Siegel, N.Y. Prac. § 111, at 30 [2d ed 1996 Pocket Part] ["The court has gotten its index fee, so that the objection should now be reduced to something the defendant can waive if he wants to. Hence the failure to raise the objection in due form in this situation should waive it"] ). 1

Apart from the court system's interest in collecting the filing fee, the need to pinpoint the moment of "commencement" is bound up with Statute of Limitations and service of process issues, which only concern the parties and which can be waived (see, CPLR 3211[e] ). Thus, under CPLR 203(c)(1), the moment of commencement by filing "constitutes the crucial date for determining whether the Statute of Limitations is satisfied" (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). In addition, "[u]nder 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" (Matter of Gershel v. Porr, 89 N.Y.2d 327, 330, 653 N.Y.S.2d 82, 675 N.E.2d 836, supra ). 2 Insofar as the sufficiency of the papers filed at commencement is linked to these waivable matters of primary concern to the parties, not the court...

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