MATTER OF FRY v. VILLAGE OF TARRYTOWN

CIPARICK, J.

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 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; Matter of Vetrone v Mackin, 216 A.D.2d 839, 841).

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; see, NY 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). 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).

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).

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 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, NY 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). 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, 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, defects in filing should be waivable as well (see, Siegel, NY Prac § 111, at 31 [2d ed 1996 Pocket Part] ["a waiver by the defendant should be okay with respect to anything that concerns the defendant alone, like a defect in process service"]).

We note that an objection based on improper commencement was always waivable under the predecessor system in Supreme and County Courts (which is still the system in the civil courts of limited jurisdiction), in which an action or special proceeding was "commenced" at the moment of service of process. When process was not properly served under the old system, an action was not properly commenced (see, Markoff v South Nassau Community Hosp., 61 N.Y.2d 283, 288 ["when an action is dismissed for lack of personal jurisdiction due to a lack of or improper service, it has not been `commenced'"]; Parker v Mack, 61 N.Y.2d 114, 117 ["what is required for the commencement of an action is the proper service of a summons"]). However, it was settled law that defects in service of process, and thus defects in commencement, were waived if defendant appeared in the action without raising the objection (see, CPLR 3211 [e]).3 Since defects in commencement were waivable in the past, the same result should obtain under the new system, especially given the complete absence of any legislative design, much less an unequivocal legislative expression, to transform commencement from a procedural step in the prosecution of an action into an unwaivable limitation on the court's subject matter jurisdiction.4

Also instructive is the treatment of the filing requirement under the Federal commencement-by-filing system, which (loosely) served as the model for New York's filing system (see, Senate Mem in Support, Bill Jacket, L 1992, ch 216, at 4 ["This bill would bring state practice more in line with federal practice"]). In discussing rule 3 of the Federal Rules of Civil Procedure (under which an action is commenced by filing a complaint), the United States Supreme Court rejected the proposition that a party's failure to file a formal complaint would deprive the court of subject matter jurisdiction: "We think that so long as the court's subject-matter jurisdiction actually existed and adequately appeared to exist from the papers filed [such as diversity or Federal-question jurisdiction], * * * 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" (Schlesinger v Councilman, 420 U.S. 738, 742, n 5 [citing 2 Moore, Federal Practice ¶ 3.04, at 718-720; ¶ 3.06 (1), at 731-732 (2d ed 1974)]; see, Appeal of FTC Line of Bus. Report Litig., 595 F.2d 685, 704, n 111).5 This point is elaborated in the Federal practice treatise cited with approval by the United States Supreme Court, which explains that an objection based on defective filing is waivable, and does not involve a defect of subject matter jurisdiction:

The same rationale should apply in this case. Had respondents timely objected to the defective filing by including this objection in their answer or by timely moving to dismiss, the proceeding would have been subject to dismissal. However, respondents appeared in the proceeding and litigated its merits without raising this objection and therefore waived it as a ground for dismissal, and Supreme Court lacked the authority to dismiss the proceeding sua sponte on this ground.

A contrary holding — that the improper filing in this case constitutes a defect of subject matter jurisdiction — would have a severely unsettling effect on the finality of judgments. In any proceeding where there was a threshold defect in the papers filed, the resulting judgment would be forever subject to vacatur, even though respondents appeared in the proceeding, submitted to the court's jurisdiction, and litigated the proceeding on the merits (see, CPLR 5015 [a] [4]; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:3, at 465). Such harsh consequences are not lightly to be imputed to the Legislature. In the complete absence of any indication that this was what the Legislature intended in enacting the filing system, we decline to so hold. Perhaps specific legislation in this area would be helpful.6

The dissenting opinion contains statements requiring some response, lest the precise scope of the holding in this case be misunderstood. Contrary to the dissent's suggestion, we do not "call[] into serious question" the case of Matter of Gershel v Porr (89 N.Y.2d 327, supra), in which this Court held that strict compliance with the filing system is required for proper commencement (see, dissenting opn, at 730). The rule of Gershel is still good, indeed potent, law: Without proper commencement, a proceeding is subject to dismissal. For this same reason, the dissent's contention that our holding will encourage litigants to be "careless about the very first actions undertaken to bring anyone before a court" (dissenting opn, at 729) is wrong, and it is crucial that litigants and counsel understand this point. Strict compliance with CPLR 304 and the filing system is mandatory, and the extremely serious result of noncompliance, so long as an objection is timely raised by an appearing party, is outright dismissal of the proceeding.

In sum, although petitioner paid the filing fee, petitioner never filed a conformed copy of the executed order to show cause with the clerk and, therefore, failed to properly commence this proceeding. However, respondents waived any objection based on this threshold filing defect by appearing and litigating the merits of the proceeding without raising this objection. Supreme Court thus lacked the authority to dismiss on this ground sua sponte.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

SMITH, J. (dissenting).

Because we cannot agree that this proceeding would have been "subject to dismissal" only if respondents had "timely objected to the defective filing" which occurred here (majority opn, at 722), we dissent and would affirm the order of the Appellate Division.

The facts are not in dispute. The petitioner's attorney went to the Westchester County Clerk with an unsigned order to show cause, the original petition, an application for an index number, a request for judicial intervention and a check for the filing fee. Only a blank copy of the order to show cause and a copy of the request for judicial intervention were retained by the clerk. The original papers were brought to the Justice assigned to the matter. The assigned Justice modified the proposed order to show cause, signed the revised order and retained the original.

Petitioner thereafter served a conformed copy of the order to show cause but failed to file a conformed copy with the Westchester County Clerk. Moreover, the original order to show cause had not been forwarded to the clerk of the court when Supreme Court, sua sponte, dismissed the action pursuant to CPLR 304 on the ground that petitioner failed to file "a copy of an executed order to show cause." The Appellate Division affirmed the dismissal.1

CPLR 304 states, in relevant part,

Petitioner, who had not previously objected to the sua sponte nature of Supreme Court's inquiry into petitioner's compliance with CPLR 304, now contends for the first time, on appeal to this Court, that Supreme Court lacked the authority to conduct such an inquiry.

The majority, in agreeing with the petitioner that Supreme Court acted without authority in dismissing this special proceeding, excuses the failure to comply with CPLR 304 by concluding that the filing requirement may be waived, despite its assertion that "[s]trict compliance with CPLR 304 and the filing system is mandatory" (majority opn, at 723). Moreover, the majority's holding permits parties to return to the commencement-by-service system which the Legislature clearly intended to supersede. Such a result is neither required nor supported by the plain language of the CPLR, legislative intent, or prior law.

As the majority notes, the "commencement" of an action or special proceeding serves as the triggering event for the calculation of time periods relevant to certain statutory requirements which may be waived, such as compliance with the Statute of Limitations and procedures for service of process (see, majority opn, at 719-720). However, "commencement" also serves the crucial function of notifying a court that a party desires the court's involvement in a particular matter.

It cannot be denied that a court may not intrude uninvited into any dispute it finds of interest; the exercise of judicial authority must await the invitation of a party to resolve a particular dispute. The idea that a court may sua sponte initiate proceedings or assert jurisdiction in a particular case, in the absence of a clear request for such intervention, is untenable because our judicial system simply does not function in that manner. Seemingly, the corollary of this self-evident proposition would also be true: a disputant cannot expect a court to exercise any authority over a matter until the court has been properly informed of the dispute and its power to act invoked according to prescribed law.

In New York State, the procedural mechanism for bringing a matter to the attention of a court is to "commence" an action or special proceeding by following the steps outlined in CPLR 304. Thus, "commencement" is a term of art defined by statute which further specifies "filing" as the dispositive event. Until an action has been commenced, a court cannot be expected to conduct any type of proceeding because there is simply nothing before the court. This is not a mere technicality. It is the essential key to the courthouse door and exercise of judicial power. Since a court cannot exercise subject matter jurisdiction over a matter which has not been brought before it, or personal jurisdiction over hypothetical parties, compliance with the legislatively mandated commencement-by-filing system is a substantive and necessary condition precedent to the exercise of judicial authority which cannot be waived.

Although the failure to satisfy a condition precedent may not always function as an absolute bar in all cases, where, as here, the condition is fundamental to even start the action, and is statutory in origin, the failure to satisfy the condition, a threshold prerequisite, acts as an absolute bar to the exercise of judicial authority (cf., Copeland v Salomon, 56 N.Y.2d 222, 229 ["`The rule requiring leave to sue a receiver is not statutory and is not elementary to the action'" and thus not a condition precedent which affects the jurisdiction of the court] [quoting from Pruyn v McCreary, 105 App Div 302, 304, affd 182 N.Y. 568]). Indeed, in Dreger v New York State Thruway Auth. (81 N.Y.2d 721), a commencement-by-filing case, we have held that the failure to meet the "literal" requirements for commencing various actions compelled the conclusion that the actions had not been timely commenced. In Dreger, this Court was faced with the question of whether an action brought pursuant to section 11 of the Court of Claims Act had been properly commenced. Like the present system, section 11 at that time required the filing of a claim or notice of intention with the clerk of the court and service of such claim or notice on the Attorney-General (with one exception not applicable in Dreger) (L 1984, ch 427). Although the claimants had satisfied the filing requirement, they failed to serve the Attorney-General in accordance with the applicable statutes. We held that the actions had not been properly commenced.

In holding that the filing requirement of CPLR 304 and thus, commencement, may be waived, the majority asserts that "improper commencement was always waivable under the predecessor system" (majority opn, at 720) and that the "same result should obtain" in the present system (majority opn, at 720). However, since personal jurisdiction was a prerequisite to the proper commencement of an action under the predecessor system, and personal jurisdiction may always be waived by the parties, it is not accurate to conclude that commencement, separate and apart from personal jurisdiction, was subject to waiver under the prior scheme.

Under the predecessor system, CPLR 304 provided that, "An action is commenced and jurisdiction acquired by service of a summons. A special proceeding is commenced and jurisdiction acquired by service of a notice of petition or order to show cause "(L 1962, ch 308 [emphasis added]; see also, Fleming v Long Is. R. R., 72 N.Y.2d 998, 999-1000 ["(T)he required service of a summons and complaint * * * commences the action and enables the court to acquire jurisdiction over the defendant (see, CPLR 304)"]). Since the dispositive event under the prior system of commencing actions was "service," the doctrine of personal jurisdiction was inextricably linked to the concept of commencement. But rather than disparate concepts which could be separately waived, our jurisprudence indicates that we have viewed personal jurisdiction as a prerequisite to the proper commencement of an action.

We have held that where a party successfully demonstrates that a court lacks personal jurisdiction, the action has not been properly commenced. In Parker v Mack (61 N.Y.2d 114, 118) we stated, "in no case cited have we held that an action has been `commenced' * * * when that action was terminated by reason of a deficiency related to obtaining jurisdiction over the person of the defendant." (See also, Markoff v South Nassau Community Hosp., 61 N.Y.2d 283, 286 ["An action will not be deemed `commenced,' however, until there has been proper service of a summons upon a defendant in compliance with the appropriate method prescribed by the CPLR. Therefore, when an action is dismissed for lack of personal jurisdiction because service of the summons was defective, or because service never occurred, CPLR 205 (subd [a]) will not apply notwithstanding a defendant's actual notice, because the action was never `commenced,' within the meaning of that statute"]; Fleming v Long Is. R. R., supra, 72 NY2d, at 999 ["(W)hen an action is dismissed for lack of personal jurisdiction based on defective service, the original action was never `commenced'"]; Wydallis v United States Fid. & Guar. Co., 63 N.Y.2d 872, 874 [dismissal for lack of personal jurisdiction bars recommencement under CPLR 205 since original action had not been timely commenced].)

Under the majority's interpretation of the prior system, lack of personal jurisdiction would not necessarily result in the conclusion that an action had not been commenced since the parties could waive defective commencement by waiving defective service of process. However, the majority can point to no case under the predecessor system dealing with the waiver of commencement alone, or which separately analyzes whether a party who has waived personal jurisdiction has also waived commencement of the action. Our jurisprudence simply assumes that when a court lacks personal jurisdiction over the parties, the action has not been commenced. Thus, the assertion that parties could waive commencement of an action under the prior system is inaccurate. Under the prior system, parties could waive objections to personal jurisdiction, and personal jurisdiction was treated as a necessary predicate to the commencement of an action.

Notably, the Legislature specifically removed the word "jurisdiction" from CPLR 304 via the 1992 amendments, and provided separate procedures for filing proof of service (see, CPLR 306-b). In doing so, the Legislature deliberately separated the concept of commencing an action from personal jurisdiction, making "filing" the dispositive event for commencement. Thus, it is not surprising, as the majority notes, that the word "jurisdiction" is absent from CPLR 304 (see, majority opn, at 719). By separating "commencement" from the concept of personal jurisdiction, and generally requiring that proof of service be filed within 120 days after the filing which commences the action, the Legislature explicitly made commencement of the action a necessary precondition to the exercise of personal jurisdiction. Consequently, waiver, a doctrine unquestionably applicable to personal jurisdiction, cannot be as easily or casually transferred and applied to commencement of an action or special proceeding.3

The majority provides no statutory support for equating the filing requirement in CPLR 304 with Statute of Limitations concerns and service of process issues, both characterized as "waivable matters of primary concern to the parties" (majority opn, at 720), simply because none exists. Despite the majority's repeated assertions that a defendant or respondent must move to dismiss the action or raise an objection to improper commencement in the answer, there is no CPLR provision which deals with improper commencement due to defective filing. In stark contrast, CPLR 3211 (a) (5) and (8) specify that a motion is required to obtain a dismissal on Statute of Limitations grounds or for lack of personal jurisdiction.

The majority's statement that the "threshold filing defect [here] does not authorize a sua sponte dismissal" (majority opn, at 716) is circular. No "authority" is necessary to dismiss an action which has been improperly commenced because the court's power has never been validly invoked. However, if, as the majority contends, the Legislature intended to render invalidly commenced actions and proceedings "subject to dismissal," authorization for such a remedy would have been provided in the CPLR since that statute contains various provisions under which dismissal of actions may be obtained.

As the majority notes, filing, service of process and Statute of Limitations are related concepts for some purposes. However, they are statutorily and procedurally distinct concepts which are not fungibly interchangeable for all purposes such as are implicated in this case. For example, pursuant to CPLR 3211 (e), the defense of Statute of Limitations may be raised either by motion or in the responsive pleading. A motion to dismiss based on lack of personal jurisdiction, on the other hand, must be raised by motion if defendant moves for dismissal on any other CPLR 3211 (a) grounds; otherwise the objection is deemed waived.

Furthermore, in holding that the petitioner waived the defective filing here by appearing without making a specific objection, whether by motion or in the answer, the majority sanctions a return to the commencement-by-service system. Since a defendant or respondent does not receive notice of an action until service has been effected, and indeed, cannot answer or contest the propriety of commencement until then, service of process is again reinstated, judicially, as the dispositive timing event for the consideration of such challenges.4

Worse still, unlike the prior system, defendants and respondents must now make a trip to the courthouse after process has been served in order to ascertain whether the action has been properly commenced. The majority offers no justification for the imposition of such an affirmative burden which bestows undue advantage on plaintiffs and petitioners who can be careless about the very first actions undertaken to bring anyone before a court. As initiators of an action or a special proceeding, plaintiffs and petitioners may opt for a forum convenient to them but inconvenient to others. Thus, ironically, the party on the receiving end of a concededly improperly commenced action is forced to take affirmative steps to determine whether the "initiating" adversary complied with the CPLR. This turns the process of starting a lawsuit on its head.

We have recently noted the procedure for commencing a special proceeding,

By now stating that defective filing "should be waivable" (majority opn, at 720), the majority fosters serious uncertainty as to which or whether any of the various elements of filing specified in CPLR 304 — the payment of fees, the delivery of documents to the clerk of the court or the proper form of initiatory documents — must be present for proper commencement of an action or special proceeding. Moreover, the central emphasis placed by the majority on collecting revenue is seriously misplaced, as other important jurisprudential values are at stake.

Indeed, the majority calls into serious question our recent statement in Gershel that "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, supra, 89 NY2d, at 330 [emphasis added]; see also, majority opn, at 719). The majority's conclusions that such a "nullity" could have been waived is a major contradiction with recent precedent and predictable litigation practice.5

Furthermore, notwithstanding the speculation of academics and commentators that "defects" in the commencement of actions are only of primary interest to parties, and should thus be subject to waiver, a party does not have the institutional interest of a court in the integrity, uniformity, regularity and even-handed application of the filing system, the payment of filing fees, or the delivery of documents to the clerk of the court.

Finally, the majority's reliance on a footnote in Schlesinger v Councilman (420 U.S. 738) for the proposition that the Federal system would permit a party to waive the defect in commencement which occurred here is inapposite. In Schlesinger, an Army Captain who faced court-marital charges for the sale, transfer and possession of marihuana brought an action in Federal District Court to enjoin military authorities from proceeding with the court-martial. The District Court granted a permanent injunction and the Court of Appeals affirmed on the ground that the court-martial charges were not related to the Captain's service in the Armed Forces. The Supreme Court held that article 76 of the Uniform Code of Military Justice did not bar the District Court lawsuit, assuming that the requisite amount in controversy existed, since the District Court had "arising under" subject matter jurisdiction over the case (see, 28 § USC 1331 ["The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"]). Nevertheless, the Supreme Court held that "[a]lthough the District Court may have had subject-matter jurisdiction, we think that the balance of factors governing exercise of equitable jurisdiction by federal courts normally weighs against intervention, by injunction or otherwise, in pending court-martial proceedings" (id., 420 US, at 740). Thus, as an initial matter, the footnote relied upon by the majority clearly falls into the category of dicta since the Supreme Court held that the District Court should not have exercised jurisdiction over the matter.

Second, footnote 5 indicates that though a properly denominated complaint was not filed, the papers filed included a motion for a temporary restraining order and a preliminary injunction, a supporting affidavit and briefs, papers which were a substitute for a complaint and thus adequate to give notice of the claim. No comparable papers were filed here.

Schlesinger is also distinguishable on the ground that the defect there involved a failure of pleading which could be cured by reference to another provision of the Federal Rules of Civil Procedure. There is no analog in the CPLR sufficient to cure the defect at issue here since the flaw did not arise from defective pleading. Petitioner's filing was defective because "an unexecuted order to show cause is of no legal effect" (majority opn, at 717). Apparently, a document with "no legal effect" may be waived into effect by an inattentive party.

Indeed, the Supreme Court has observed,

Like the petitioner here, the respondent in Baldwin filed a document with no legal effect, a right-to-sue letter issued by the Equal Employment Opportunity Commission, in lieu of a complaint. By the time respondent filed a proper complaint, her 90-day period for "invoking the court's jurisdiction" (id., at 149), that is, to sue the party named in the letter pursuant to title VII of the Civil Rights Act of 1964, had expired. The District Court, sua sponte, dismissed respondent's title VII claims (see, 466 US, at 163 [Stevens, J., dissenting]), since the right-to-sue letter did not constitute a complaint and rule 3 of the Federal Rules of Civil Procedure provides that an action is commenced by filing a complaint with the court. The Court of Appeals reversed.

The Supreme Court upheld the dismissal of the title VII claims. Since the right-to-sue letter did not meet the requirements of a complaint, respondent's filing of the letter did not commence a title VII action and the District Court's sua sponte dismissal of respondent's title VII claims was proper. Similarly, the sua sponte dismissal of petitioner's special proceeding here was proper given petitioner's failure to comply with the procedural requirements established by the Legislature for gaining access to State courts.

Other Federal courts have also held that the failure to properly commence an action because of a defect in the initiatory document deprives the court of power to act (see, e.g., Application of Howard, 325 F.2d 917, 919-920 [ordering the dismissal of an "application" for "failure to comply with the applicable rules of civil procedure" where the party failed to file a complaint and to "proceed in such manner as the rules of civil procedure prescribe"]; Farrell v Ignatius, 283 F.Supp. 58, 60 ["Since [only an affidavit and] no complaint was filed and no summons was issued in the case at bar, no action has ever been commenced or is pending in this court. The court has no jurisdiction to act. The order to show cause is vacated and set aside as wholly void and the proceeding is dismissed"]; Warren v Arzt, 18 FRD 11, 13 ["To commence an action, it is necessary that the Rules of Civil Procedure be complied with, that a complaint be filed, a summons issued, and service made as prescribed in the Rules. * * * Since no action has ever been commenced or is pending in this Court, this Court obviously has no jurisdiction to act"]; In re Market Basket, 122 F.Supp. 321, 322 ["Inasmuch as no action has been commenced or is pending in this court in respect of this matter, it follows that the jurisdiction of the court has never been invoked and that the ex parte order signed and entered herein by the court on September 9, 1953, is, and always was, wholly void"]).

The majority has cited no case, nor could it, for the proposition that an appropriately attentive Justice in Supreme Court cannot, on the court's own motion, examine and rule on its own power to act where the file in the custody of the clerk of the court shows, on its face, that jurisdiction was not properly and regularly invoked.6 The court in such circumstances should not be relegated to the role of a passive observer. As to this, the court is a full participant in issues concerning its own power.

It should be clear that what the majority considers waived by the petitioner here is not only an objection to defective commencement of a proceeding but also the court's lack of power to exercise jurisdiction over this matter or the parties involved in this dispute. That is not a matter a party has or should have unilateral power over; it always resided with the court itself, especially at the outset of its undertaking the responsibility of deciding a properly commenced lawsuit.

We would affirm the order of the Appellate Division on the ground that petitioner failed to properly commence this special proceeding.

Order reversed, etc.