8 N.Y.3d 661 (2007)
A party waives objections to personal jurisdiction by actively participating in a proceeding without timely objecting to a defect in the commencement of the action on personal jurisdiction grounds.
Summary
Diane Ballard filed a petition in Supreme Court seeking review of a Human Rights Division order. Her notice of petition omitted the return date. HSBC, the respondent, filed a cross-petition asserting jurisdiction was proper, then moved to dismiss Ballard’s petition for lack of jurisdiction based on the missing return date. The Court of Appeals held that the omission of the return date was a waivable defect related to personal jurisdiction, not subject matter jurisdiction, and HSBC waived its objection by participating in the proceeding without raising a timely objection.
Facts
Diane Ballard, after an adverse determination by the Acting Commissioner of the NYS Division of Human Rights, filed a petition in Supreme Court seeking review.
Ballard’s notice of petition did not include a return date because no Justice had been assigned.
Ballard sent a letter to the assigned Justice and copied the respondents, proposing a return date.
HSBC filed a cross-petition, specifying a return date and stating that jurisdiction was proper.
HSBC then moved to dismiss Ballard’s petition, alleging a lack of jurisdiction and a statute of limitations bar based on the missing return date.
Procedural History
Ballard filed a petition in Supreme Court.
HSBC filed a cross-petition and subsequently moved to dismiss Ballard’s petition.
Supreme Court, in an advisory opinion, found a lack of subject matter jurisdiction and transferred the matter to the Appellate Division.
HSBC moved to dismiss the petition in the Appellate Division for lack of subject matter jurisdiction and statute of limitations.
HSBC then filed a second motion to dismiss on personal jurisdiction and statute of limitations grounds.
The Appellate Division granted HSBC’s motion, stating a lack of subject matter jurisdiction.
The Court of Appeals granted Ballard’s motion for leave to appeal.
Issue(s)
Whether the failure to include a return date in a notice of petition constitutes a non-waivable jurisdictional defect under Executive Law § 298, implicating subject matter jurisdiction.
Whether HSBC waived its right to challenge the defect by actively participating in the proceeding without raising a timely objection.
Holding
No, because the omission of the return date, at best, invokes a claim of improper commencement or personal jurisdiction, not subject matter jurisdiction.
Yes, because HSBC actively participated in the proceeding, asserted jurisdiction was proper in its cross-petition, and failed to timely object to the defect on personal jurisdiction grounds.
Court’s Reasoning
The Court of Appeals reasoned that subject matter jurisdiction concerns the court’s power to hear a case, conferred by the Constitution or statute. Technical defects in filings do not affect subject matter jurisdiction when they do not undermine the basis to hear a case.
Executive Law § 298 gives the court competence to hear challenges to rulings by the Commissioner of the State Division of Human Rights.
The court distinguished this case from those where a condition precedent implicates subject matter jurisdiction, finding that the missing return date did not affect the court’s fundamental power to hear the case.
The Court relied on its prior holdings in National Gypsum Co. and Harris v. Niagara Falls Bd. of Educ., emphasizing that defects in compliance with commencement procedures do not deprive a court of subject matter jurisdiction and are waived absent a timely objection.
Regarding personal jurisdiction, the Court found that HSBC waived any objection by participating in the proceeding, asserting jurisdiction was proper in its cross-petition, and failing to timely raise a challenge to personal jurisdiction. “[D]efendants and respondents are warned that if they want to capitalize on technicalities they must mind their own procedures.”
The court emphasized that HSBC’s initial motion at the Appellate Division did not seek dismissal on personal jurisdiction grounds. HSBC was required to either move to dismiss the petition before filing its cross petition or affirmatively raise the issue in an answer.