In the Matter of Christopher P. Gershel, Appellant, v. Harry Porr III, City Manager, City of Newburgh, Respondent.
89 N.Y.2d 327, 675 N.E.2d 836, 653 N.Y.S.2d 82 ( 1996)
December 19, 1996
2 No. 261 [1996 NY Int. 247]Decided December 19, 1996
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Michael H. Sussman, for appellant.
Kelly A. O'Neill, for respondent.
CIPARICK, J.:
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 initiatory 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 set-off 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
non-compliance 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:
[P]etitioner's attorney
informed the court that he did not intend to proceed, was withdrawing the
order to show cause, but would re[-]serve the papers, and the order to
show cause (but not the proceeding) was marked "dismissed." Petitioner
has now re[-]served a notice of petition and petition using the index number
originally assigned. Since petitioner's time to serve process has
not expired, the procedure followed is proper, and the motion is denied.
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:
the petitioner withdrew
his initial order to show cause, and thus the proceeding was at that point
effectively dismissed. Because the petitioner failed to comply with
the filing and fee requirements of CPLR 304 prior to serving the notice
and petition on his second attempt to commence a CPLR article 78 proceeding,
the instant proceeding was never actually commenced and the court erred
in denying the appellant's motion to dismiss (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 and
Finance, 85 NY2d 760, 763). 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, NY 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 action
or special proceeding, which has been technically commenced upon filing,
remains inchoate until follow-up service is effected and proof of service
filed; failure to take the necessary follow-up steps in the time provided
will result in the action being automatically "deemed dismissed" (CPLR
306-b[a]). Although the "deemed dismissed" is without prejudice,
it can work harsh results when the statute of limitations has expired in
the interim. In recognition of this procedural trap, the Legislature
built a safety valve into the filing system to protect a party whose action
or proceeding is dismissed for failure to file proof of service or failure
to effect proper service. When such a dismissal occurs, the statute
affords the petitioner in a special proceeding 15 days from the dismissal
date--notwithstanding the interim expiration of the statute of limitations--in
which to start over by purchasing another index number, re-filing the initiatory
papers, and effecting service of those papers on respondent (see, CPLR
306-b[b]; cf., id. [in an action, plaintiff has 120 days from deemed dismissed
date to commence new action and effect service]; see generally, Alexander,
Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C306-b:2,
C306-b:3, 1996 Pocket Part, at 84-86).
In this case, petitioner
initially attempted to commence a special proceeding by paying a filing
fee, securing an index number, filing with the court an executed order
to show cause together with a petition, and attempting to serve these papers
on respondent. Up to this point, petitioner had complied with the
dictates of the commencement-by-filing formula, and if petitioner's service
had been proper and proof of service timely filed, the filing requirements
would have been met. However, rather than contest respondent's motion
to dismiss for improper service, petitioner voluntarily withdrew the order
to show cause and then served the petition on respondent along with a newly
drawn, never-filed notice of petition. Petitioner contends that because
the statutory period to file proof of service had not yet expired, he was
justified in re-serving the petition without re-commencing. Petitioner's
argument is unavailing.
The procedure to commence
a special proceeding, and its statutorily prescribed sequence, is manifest
from the terms of the commencement-by-filing statute: the petitioner must
first purchase an index number and file with the court a notice of petition
or order to show cause along with a petition, then effect service of the
filed papers on respondent, and finally file proof of service with the
court within the statutory period (see, CPLR 304, 306-a, 306-b[a]).
Basic to this statutory procedure is the rule that the papers served must
conform in all important respects to the papers filed (see, Siegel's Prac
Rev No. 19, at 2 [May 1994]; Shivers v International Service Sys., 220
AD2d 357 [service of summons and complaint on defendant added to caption
after filing is ineffective]).
In this case, once petitioner
withdrew the order to show cause and Supreme Court marked it "dismissed,"
the first proceeding was effectively abandoned because there was then no
viable order to show cause or notice of petition in the file. Supreme
Court was thereafter without authority to retain "jurisdiction" over a
proceeding in which jurisdiction over respondent had not been established
and the crucial initiatory paper abandoned. At that point, petitioner
could not, and in fact did not, simply re-serve the papers already on file.
Instead, petitioner served a newly drawn notice of petition along with
the previously served petition--together comprising a new set of initiatory
papers--without first satisfying the filing requirements.
By withdrawing the order
to show cause rather than obtaining from the court a new return date and
date by which service would be made of the filed order to show cause and
petition, petitioner made the decision to start anew. Along with
this decision came the obligation again to comply fully with the statutory
filing requirements, that is, to file the notice of petition and the petition,
pay the filing fee, secure an index number, effect service, and file proof
of service within the prescribed period. Since petitioner did not
take these steps, the new proceeding was never properly commenced and the
attempted service was a nullity (see, Vetrone v Mackin, 216 AD2d 839, 841
[filing 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]).
Accordingly, the order of
the Appellate Division should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Ciparick. Chief
Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.
Decided December 19, 1996