Fry v. Village of Tarrytown, 89 N.Y.2d 714 (1997)

A respondent who appears in a special proceeding and litigates the merits without objecting to a defect in the initial filing waives the right to object to that defect, and the court cannot dismiss the proceeding sua sponte based on that defect.

Summary

Fry sought to challenge a zoning board determination via a CPLR Article 78 proceeding. He paid the filing fee but only filed an unexecuted order to show cause. The Village of Tarrytown responded without raising any objection to the defective filing. The Supreme Court dismissed the proceeding sua sponte due to the filing defect. The Court of Appeals reversed, holding that while the initial filing was defective, the Village waived its right to object by appearing and litigating the merits. The Court emphasized that the filing requirement is primarily for revenue purposes and to establish timelines, both of which can be waived.

Facts

Fry owned property in Tarrytown and sought a variance from the Zoning Board of Appeals. The Board denied his application in June 1993. Fry then attempted to commence an Article 78 proceeding to challenge this determination. On March 7, 1994, he delivered a proposed order to show cause, a petition, and a Request for Judicial Intervention (RJI) to the Westchester County Clerk, paying the filing fee. The clerk separated the proposed order from the petition and accepted the proposed order and RJI for filing. The motion support office assigned the matter to a Justice. The Justice signed the order to show cause after modifying it. Neither the original nor a conformed copy of the executed order was filed with the clerk before the court’s decision.

Procedural History

Fry served copies of the executed order and petition on the Village. The Village answered the petition without objecting to the defective filing. Supreme Court denied the petition, dismissing the proceeding, holding that the filing of the blank order did not commence a proceeding under CPLR 304. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the filing of an unexecuted order to show cause constitutes proper commencement of a special proceeding under CPLR 304.
2. Whether a respondent waives the right to object to a defective filing by appearing in the proceeding and litigating the merits without raising the objection.
3. Whether a court can dismiss a special proceeding sua sponte based on a filing defect when the respondent has appeared and litigated the merits without objecting to the defect.

Holding

1. No, because CPLR 304 requires the filing of an executed order to show cause or a notice of petition, and an unexecuted order has no legal effect.
2. Yes, because the filing requirements are primarily for revenue purposes and to establish timelines, and these interests are waivable by the parties.
3. No, because the respondent waived the objection by appearing and litigating the merits, depriving the court of the authority to dismiss sua sponte.

Court’s Reasoning

The Court of Appeals reasoned that while Fry’s initial filing was defective, the Village waived the defect by appearing and litigating the merits without objection. The Court emphasized that Supreme Court has subject matter jurisdiction over Article 78 proceedings challenging zoning board determinations. The key issue was whether strict compliance with the filing system is required for the court to have the power to adjudicate the case, when subject matter jurisdiction otherwise exists and personal jurisdiction has been obtained.

The Court noted that the filing statute (CPLR 304, 306-a, 306-b) does not explicitly limit the court’s competence to entertain particular actions. The primary purpose of the filing system is to raise revenue for the state, which was accomplished when Fry paid the filing fee. The Court quoted Siegel, NY Prac § 111, stating, “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.” The Court also highlighted that under CPLR 203(c)(1), filing determines whether the Statute of Limitations is satisfied, a concern primarily for the parties, which can be waived under CPLR 3211(e).

The Court drew an analogy to the previous commencement-by-service regime, where defects in service were waived if the defendant appeared without objection. The Court cited Markoff v South Nassau Community Hosp., 61 NY2d 283, 288, stating, “when an action is dismissed for lack of personal jurisdiction due to a lack of or improper service, it has not been ‘commenced’.”

The Court also referred to the federal commencement-by-filing system as instructive, citing Schlesinger v Councilman, 420 US 738, 742, 5: “We think that so long as the court’s subject-matter jurisdiction actually existed and adequately appeared to exist from the papers filed… any defect in the manner in which the action was instituted and processed is not itself jurisdictional and does not prevent entry of a valid judgment.”

The Court concluded that the Village waived its objection, and the Supreme Court lacked the authority to dismiss the proceeding sua sponte. To hold otherwise would unsettle the finality of judgments, making them forever subject to vacatur based on threshold filing defects, even when the respondent appeared and litigated the merits.

The Court clarified that the holding does not undermine the rule in Matter of Gershel v Porr, 89 NY2d 327, requiring strict compliance with the filing system for proper commencement. Failure to properly commence a proceeding still subjects it to dismissal if a timely objection is raised by an appearing party.