Gershel v. Porr, 89 N.Y.2d 326 (1996)
Under New York’s commencement-by-filing system, proper commencement of a special proceeding requires filing initiatory papers and paying a filing fee before service; subsequent service of process without a new filing is a nullity if the original filing was withdrawn.
Summary
This case addresses the requirements of New York’s commencement-by-filing system. Gershel, a police chief, initiated an Article 78 proceeding but later withdrew the order to show cause. He then served a notice of petition without a new filing fee or index number. The Court of Appeals held that Gershel failed to properly commence the proceeding because the withdrawal of the initial filing necessitated a complete recommencement, including a new filing and fee. Service of the notice of petition without fulfilling these requirements was deemed a nullity, emphasizing strict compliance with CPLR 304 and 306-a.
Facts
Gershel, the Police Chief of Newburgh, was charged with misconduct and suspended without pay. Due to scheduling conflicts, an administrative hearing was delayed. The City restored Gershel to the payroll but withheld wages for a three-week period. Gershel initiated a CPLR Article 78 proceeding seeking compensation for the withheld wages by filing an order to show cause and verified petition.
Procedural History
The City moved to dismiss the initial order to show cause for lack of personal jurisdiction. Instead of proceeding with a traverse hearing, Gershel withdrew the order to show cause. He then served a notice of petition and petition, using the original index number. The City moved to dismiss for noncompliance with CPLR 304 and 306-a. Supreme Court denied the motion. The Appellate Division reversed, dismissing the proceeding. The Court of Appeals granted leave to appeal.
Issue(s)
Whether petitioner satisfied the requirements of New York’s commencement-by-filing system in this special proceeding when he withdrew the originally filed order to show cause and thereafter served a notice of petition without filing a new set of initiatory papers and paying an additional filing fee.
Holding
No, because under the commencement-by-filing system, withdrawing the originally filed order to show cause required the petitioner to recommence the proceeding by purchasing another index number, refiling the initiatory papers, and effecting service of those papers on the respondent. Since the petitioner did not take these steps, the new proceeding was never properly commenced and the attempted service was a nullity.
Court’s Reasoning
The Court emphasized the shift from a commencement-by-service to a commencement-by-filing system in 1992, highlighting that paying the filing fee and filing initiatory papers are the acts that commence a special proceeding. The Court stated, “[S]ervice 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.” CPLR 306-b(a) states that an action remains inchoate until follow-up service is effected and proof of service is filed. Failure to do so in the time provided will result in the action being automatically “deemed dismissed.”
The Court reasoned that when Gershel withdrew the order to show cause, the initial proceeding was effectively abandoned, and Supreme Court lost authority over it. By serving a new notice of petition without a new filing, Gershel failed to comply with the statutory requirements. The Court pointed out that Gershel should have obtained a new return date from the court to ensure the matter was properly before the court.
The court found support in Matter of Vetrone v. Mackin, stating, “[F]iling of jurisdictionally defective notice of petition followed by service of corrected notice of petition is ineffective in absence of additional filing and payment of filing fee.” The Court emphasized the statutorily prescribed sequence: filing, service, and proof of service. The papers served must conform to the papers filed. By withdrawing the order to show cause rather than obtaining from the court a new return date, petitioner made the decision to start anew, along with which came the obligation again to comply fully with the statutory filing requirements.