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MATTER OF FRY v. VILLAGE OF TARRYTOWN

89 N.Y.2d 714 (1997)

680 N.E.2d 578

658 N.Y.S.2d 205

In the Matter of Mark Fry, Appellant, v. Village of Tarrytown et al., Respondents.

Court of Appeals of the State of New York.

Decided March 27, 1997.

Attorney(s) appearing for the Case

Chadbourne, O'Neill, Thomson, Whalen & Fitzgerald, North Tarrytown (Dennis M. Fitzgerald of counsel), for appellant.

Jeffrey S. Shumejda, North Tarrytown, for respondents.

Chief Judge KAYE and Judges TITONE, LEVINE and WESLEY concur with Judge CIPARICK; Judge SMITH dissents and votes to affirm in a separate opinion in which Judge BELLACOSA concurs.

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...

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