author: Chief Judge Kaye.

text:
    [680 NE2d 150, 657 NYS2d 879]
    The People of the State of New York, Respondent, v James Carvey, Appellant.
    Argued March 20, 1997;
    decided May 1, 1997

      POINTS OF COUNSEL

      Rosemary Herbert, New York City, and Richard M. Green-berg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Deirdre Waldron Power and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant, a passenger in an automobile stopped for a traffic infraction, was arrested when the police discovered a gun under his seat. Defendant challenges the legality of the search that took place after he and the other occupants were removed from the vehicle. We are thus called upon once again to determine whether information acquired by the police during the course of a traffic stop justified further intrusion into the interior of an automobile.

We agree with the courts below that the police action here was proper. Defendant was wearing an article uniquely indicative of his present readiness to use an available firearm — a bulletproof vest. This salient fact, when coupled with the police observation of defendant furtively placing something beneath his seat, warranted the conclusion that a weapon located in the vehicle presented an actual and specific threat to the officers’ safety. In these particular circumstances, the officers could lawfully reach into the vehicle, even after removing the driver and passengers.

Facts

At 1:20 a.m. on July 29, 1992, Police Officer Mucciariello stopped a white Cadillac with four occupants at Ninth Avenue and 26th Street in Manhattan, because it had no rear license plate. He approached the driver’s side and asked for her license, registration and insurance card. When the driver was unable to present any paperwork, the officer returned to his patrol car to prepare a summons.

At that time, Police Officers Dalton and Mascaro arrived at the scene. Knowing that Mucciariello was alone, they exited their vehicle to determine whether he needed back-up. As Dalton approached the Cadillac on the passenger side, he noticed defendant, in the rear passenger seat, bend down and place something under the seat with his right hand. He also observed that defendant was wearing a bulletproof vest under his sweatshirt. Dalton was able to identify the vest because he had worn one himself for the past 11 years.

All four individuals were removed from the car. Dalton patted defendant down and, finding nothing, handed him to Mascaro. Dalton then reached into the car, under the rear passenger seat, and recovered a gun from the spot where defendant had been seated. Defendant and the others were arrested and taken to the precinct. After being advised of his constitutional rights, defendant made oral and written statements.

Defendant moved to suppress the weapon and statements as fruits of an unconstitutional search. After crediting Dalton’s testimony concerning his observations that evening, the suppression court found that the officers had lawfully stopped the automobile and ordered the occupants out of the car, and that Dalton’s act of reaching into the car was justified. The court thus denied the motion to suppress, and defendant ultimately pleaded guilty to attempted criminal possession of a weapon in the third degree. The Appellate Division, with one Justice dissenting, agreed with the suppression court and affirmed, as do we.

Discussion

As an initial matter, the Cadillac was lawfully stopped upon Officer Mucciariello’s observation that it was missing a rear license plate (see, People v Ingle, 36 NY2d 413). It was, moreover, proper to direct the driver and passengers to exit the detained vehicle (see, People v Robinson, 74 NY2d 773, cert denied 493 US 966). The more difficult question is whether, once defendant and the other occupants had been removed from the automobile, the police could lawfully commit the greater intrusion of reaching into the vehicle.

In People v Torres (74 NY2d 224, 226), the Court explained that "[a] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm.” Consequently, we held that, absent probable cause, it is unlawful for a police officer to invade the interior of a stopped car once the suspects have been removed and patted down without incident and any immediate threat to safety thereby eliminated. In doing so, we rejected the conclusion of the United States Supreme Court in Michigan v Long (463 US 1032) that such an intrusion "could be justified purely on the theoretical basis * * * that harm could occur after the investigation is terminated and the suspect is permitted to reenter his vehicle” (74 NY2d at 231, n 4 [emphasis in original]).

The Court articulated in Torres, however, a narrow exception to this rule. After clarifying that we did not mean our holding "to suggest that the degree of probable cause outlined in People v Belton (55 NY2d 49, 55) is always required as a predicate for conducting a limited intrusion and search of the passenger compartment of the suspect’s car,” we explained:

"Indeed, there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officer’s safety sufficient to justify a further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon.” (People v Torres, 74 NY2d at 231, n 4.)

Notwithstanding this acknowledgment that a further intrusion might be justified even in the absence of probable cause, we made clear that the likelihood of a weapon in the car must be substantial and the danger to the officer’s safety "actual and specific.” We emphasized, moreover, that a reasonable suspicion alone will not suffice. Indeed, in Torres itself the police received an anonymous tip that a man wanted on homicide charges could be found at a particular barber shop, driving a black Eldorado and carrying a gun in a shoulder bag. Defendant, who fit the description, left the barber shop carrying a shoulder bag and entered a black Eldorado. Nevertheless, because this information provided the police with nothing more than "a reasonable basis for suspecting the presence of a gun,” it was insufficient to entitle the police to remove the bag from the front seat and search it once defendant and his companion had been ordered out of the car and frisked (id., at 227 [emphasis in original]; see also, People v Snyder, 178 AD2d 757, affd 80 NY2d 815 [observation of empty holster on passenger seat of defendant’s car, which matched description given in police radio broadcast of car used in an assault that possibly involved a gun, was insufficient to justify search of vehicle once suspects had been removed from the car and frisked]).

Defendant urges that the police here had even less reason than in Torres to believe there was a weapon within the automobile, since his conduct was innocuous and the police had no information connecting him to any crime or weapon. We disagree.

In People v Ellis (62 NY2d 393), we held that the discovery of bullets during a frisk of a suspect stopped for a traffic infraction provided the police with probable cause to search the glove compartment of the stopped vehicle. We distinguished bullets from other lawful items incidentally related to guns — such as holsters or practice targets — the discovery of which permit only an inquiry by police (see, People v Johnson, 54 NY2d 958). Bullets, by contrast, "have no other practical use than as ammunition for a deadly weapon” and are, therefore, "more immediately associated with the presence of a deadly weapon” (People v Ellis, 62 NY2d at 397).

Unlike bullets, a bulletproof vest has a "practical use” by itself as a measure of protection (id., at 397). We have therefore explained that "more is usually required to justify a frisk of the suspect” (People v Batista, 88 NY2d 650, 655). Like bullets, however, the wearing of a bulletproof vest is more immediately associated with the presence and use of a firearm than an empty holster or practice target. As we have previously noted, a bulletproof vest "is designed to prevent the penetration of bullets,” and there is an "inherent linkage between a vest and possession of a firearm” (People v Batista, 88 NY2d at 655; see, People v Smith, 59 NY2d 454, 459). Indeed, "[t]he whole purpose of the wearing of the vest is to make it more feasible to go armed, [and] to enhance the advantage of doing so” (People v Heath, 203 AD2d 17, 19, affd 86 NY2d 723). The act of wearing a bulletproof vest thus suggests more than the presence of a deadly weapon — it demonstrates its owner’s readiness and willingness to use a deadly weapon (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 270.20, at 480-481 [noting that " 'when criminals have the vest on they believe they are invincible and are less likely to surrender without a fight’ ” (quoting NY Times, Mar. 27, 1984, at 1, col 1)]; see also, People v Heath, 86 NY2d at 725, supra).

Here, then, defendant wore an article that uniquely evidenced his preparation to engage in gun battle as well as his enhanced ability to safely use a deadly weapon. Sheathed in this protective armor, he also suspiciously bent down and hid something beneath his car seat as the police approached. There was thus evidence in the record to support the finding that the officers could reasonably have concluded that "a weapon located within the vehicle presented] an actual and specific danger” to their safety (People v Torres, 74 NY2d at 231, n 4, supra). We therefore do not disturb the Appellate Division’s determination that the limited police intrusion of reaching into the area of the automobile where defendant had been seated was justified, even though defendant was unable to gain immediate access to any weapon located therein (id.).

Accordingly, the order of the Appellate Division should be affirmed.

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed.

       We note that we have not considered whether the police here had probable cause to search the stopped vehicle. That mixed question of law and fact was not addressed by the lower courts.


source: Caselaw Access Project

author: Ciparick, J. Smith, J.

license: Public Domain

text:
    [680 NE2d 578, 658 NYS2d 205]
    In the Matter of Mark Fry, Appellant, v Village of Tarrytown et al., Respondents.
    Argued February 6, 1997;
    decided March 27, 1997

      POINTS OF COUNSEL

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

      Jeffrey S. Shumejda, North Tarrytown, for respondents.
   OPINION OF THE COURT

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.T, 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 NY2d 327, 332; Matter of Vetrone v Mackin, 216 AD2d 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 NY 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 NY2d 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 NY2d 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 NY 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 NY2d 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”]).

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 NY2d 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 NY2d 327, 330, supra). 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 NY2d 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 NY2d 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]). 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.

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 US 738, 742, n 5 [citing 2 Moore, Federal Practice If 3.04, at 718-720; 1f 3.06 (1), at 731-732 (2d ed 1974)]; see, Appeal of FTC Line of Bus. Report Litig, 595 F2d 685, 704, n 111). 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:

"Strictly and accurately speaking, filing of the complaint does not give the court jurisdiction of the subject matter. The subject matter jurisdiction of the lower federal courts is determined by statute * * * Jurisdiction of the subject matter is vested by acts of Congress and if, coupled with that, jurisdiction over the defendant exists, the court has the power to enter a valid judgment. Of course, failure to comply with Rule 3, just as failure to comply with any rule, is a proper basis for timely objection” (2 Moore, Federal Practice 3.06 [1], at 3-32— 3-34 [2d ed 1996] [footnotes omitted]).

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.* ****

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 NY2d 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.

CPLR 304 states, in relevant part,

"A special proceeding is commenced by filing a notice of petition or order to show cause and a petition with the clerk of the court in the county in which the special proceeding is brought. * * * For purposes of this section, and for purposes of section two hundred three of this chapter, filing shall mean the delivery of the summons with notice or summons and complaint to the clerk together with any fee required as specified in rule twenty-one hundred two of this chapter for filing.”

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 NY2d 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 NY 568]). Indeed, in Dreger v New York State Thruway Auth. (81 NY2d 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 NY2d 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 NY2d 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 NY2d 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 NY2d 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.

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.

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,

"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 Serv. Sys., 220 AD2d 357 [service of summons and complaint on defendant added to caption after filing is ineffective])” (Matter of Gershel v Porr, 89 NY2d 327, 332).

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.

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 US 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 "[although 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,

"Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980), 'in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law’ ” (Baldwin County Welcome Ctr. v Brown, 466 US 147, 152).

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 F2d 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. 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.

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.

Order reversed, etc.

      . Although the dissent expresses discomfort with characterizing the filing legislation as a revenue measure (see, dissenting opn, at 730), the filing system’s predominant fiscal purpose — in contrast to the hypothetical purposes advanced by the dissent — was unequivocally expressed in the sponsors’ memoranda: "Filing of the complaint as required by this legislation does not initiate court management or supervision of the action, nor does it replace service of the summons as the act which confers jurisdiction over the defendant. Rather, this legislation ensures that the revenue contemplated by the 1991 addition of CPLR 306-a will be realized” (Assembly Mem in Support and Senate Mem in Support, Bill Jacket, L 1992, ch 216).

      . The dissent expresses concern that defective service of process, when deemed a "nullity,” can be waived by respondent (see, dissenting opn, at 730). However, this is not a novel theory, but a tenet of personal jurisdiction enshrined in statute. Under the CPLR, "an appearance of the defendant [or respondent] is equivalent to personal service of the summons upon him, unless an objection” based on lack of personal jurisdiction is raised (CPLR 320 [b]). Thus, it has always been and still remains the rule that service of process can be waived by respondent simply by appearing in the proceeding and submitting to the court’s jurisdiction.

      . The dissent suggests that the requirement of proper commencement was in fact not waivable under the commencement-by-service regime, but that no court had ever addressed the issue (see, dissenting opn, at 726-727). However, were this Court now to hold that proper commencement has always been an unwaivable requirement of subject matter jurisdiction, the consequences would be devastating. All past cases — decided however long ago— that went to judgment after defendant waived improper service (and thus which were never properly commenced), would be subject to vacatur (see, CPLR 5015 [a] [4]). Needless to say, this cannot be the law.

      . Contending that our holding represents a reversion to the commencement-by-service regime, the dissent reasons that "[s]ince 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 dis-positive timing event for the consideration of such challenges.” (Dissenting opn, at 729 [emphasis added].) However, the dissent’s grievance is not with our holding, it is with the CPLR itself. Service of process has always been and is still the CPLR’s "dispositive timing event” for answering or for moving to dismiss, and nothing in the filing system changes that rule (see, CPLR 3012 [a] ["Service of an answer or reply shall be made within twenty days after service of the pleading to which it responds”]; CPLR 3211 [e] ["At any time before service of the responsive pleading is required, a party may move” to dismiss]).

      . Even though the case is only instructive and not binding on this Court, the dissent goes to great lengths to minimize Schlesinger, but ultimately to no avail (see, dissenting opn, at 731-732). The statement in Schlesinger that the failure to file a proper complaint would not preclude entry of a valid judgment could not have been dicta, else the court would have dismissed on this ground outright without analyzing the equitable jurisdiction issue upon which the case was decided. In addition, the Federal lower court cases relied on by the dissent (id., at 733) predate Schlesinger and are therefore without force; moreover, in three of the four cited cases, the respondent expressly raised an objection to the defective commencement, and so these cases have nothing to say on the question of waiver.

        Finally, the United States Supreme Court’s Baldwin decision relied on by the dissent (Baldwin County Welcome Ctr. v Brown, 466 US 147) dealt with the specific question of whether an action had been properly commenced within the 90-day period to bring a title VII claim prescribed by 42 USC § 2000e-5 (f) (1), not whether a defective filing is waivable under rule 3.

      . In sharp contrast to this powerful policy consideration, the dissent’s sole policy objection to our holding is that it "impostes] * * * an affirmative burden which bestows undue advantage on plaintiffs and petitioners” by requiring defendants to "make a trip to the courthouse * * * to ascertain whether the action has been properly commenced.” (Dissenting opn, at 729.) We are unpersuaded. Any party served with process must make tactical decisions concerning how to proceed, including whether to submit to the court’s jurisdiction without challenge or whether to take full advantage of existing procedural objections. Viewed in this context, the dissent’s imagined "burden” is not a burden at all, particularly when one considers that by ascertaining improper commencement — which surely can be done at little cost in this age of advanced communications and litigation services — the party can secure a dismissal.

      . The blank order to show cause was filed in this case on March 7,1994. The signed order to show cause, which was never filed with the clerk of the court, was made returnable on April 8, 1994. The order to show cause and petition were served on March 14,1994. The verified answer was dated April 22, 1994. Supreme Court’s order dismissing the proceeding was dated May 5, 1994.

      2. At the time the blank order to show cause was filed in this case on March 7,1994, CPLR 304 did not require that a petition be filed with the order to show cause. That requirement was added by the Legislature in 1994 (see, L 1994, ch 563 [eff July 26, 1994]).

      . We do not agree with the majority’s prediction that vacaturs of "devastating” proportions would result from adopting our view (see, majority opn, at 720, n 3). We reiterate that under the prior system, commencement of an action was not treated as a concept separate and apart from personal jurisdiction, although personal jurisdiction was required for proper commencement. The Legislature has since superseded this system by amending the CPLR and it is the commencement-by-filing system at issue here. We fail to understand how holding that "the delivery of the summons with notice or summons and complaint to the clerk together with any fee required” cannot be waived would render any judgments entered under the prior system of commencement invalid.

      . Contrary to the majority’s conclusion, our "grievance” (see, majority opn, at 721, n 4) does not arise from the CPLR itself. Absent the majority’s holding that the "filing” element of commencing actions and special proceedings may be waived, service of process would be an unimportant timing event for "commencement.” Moreover, in contrast to the predecessor commencement-by-service system, CPLR 304 now specifies filing, not service, as the dispositive event for commencement.

      . The majority’s attempt to counter this point by characterizing it as a concern with defective service of process is misplaced (see, majority opn, at 720, n 2). We do not quarrel with the proposition that parties may consent to personal jurisdiction by appearing in an action without objection. However, as we stated in Gershel, we do not agree that parties who have failed to file the proper initiatory papers, which results in a nullity, may suddenly find themselves in a validly commenced action or special proceeding merely because a defendant or respondent has "appeared.”

      . In Gershel, where a petitioner had withdrawn an order to show cause and petition rather than proceed with a hearing on improper service, this Court noted that "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” (89 NY2d, at 332).


text:
    [680 NE2d 590, 658 NYS2d 217]
    In the Matter of Fifth Avenue Office Center Co., Appellant, v City of Mount Vernon et al., Respondents. In the Matter of Tecumseh Associates, Appellant, v City of Mount Vernon et al., Respondents.
    Argued February 12, 1997;
    decided April 1, 1997

      POINTS OF COUNSEL

      Griffin, Coogan & Veneruso, P. C., Bronxville {James M. Coogan and Robert W. Wolper of counsel), for appellant in the first above-entitled proceeding.

      Olga C. Dais, Corporation Counsel of City of Mount Vernon (Jean Smiertka Huff of counsel), for respondents in the first and second above-entitled proceedings.

      Paul S. Richmond, White Plains, for appellant in the second above-entitled proceeding.
   OPINION OF THE COURT

Chief Judge Kaye.

Under Mount Vernon City local law, the Board of Assessment Review must deny any complaint concerning assessment of income-producing realty if the property owner failed to submit an annual income and expense statement in a timely manner to the Commissioner of Assessment. The issue here is whether a taxpayer’s failure to comply with this preassessment disclosure requirement also precludes judicial review pursuant to RPTL article 7. Contrary to the Appellate Division, we conclude that the local disclosure law is not a condition precedent to judicial review of a tax assessment.

In 1990, the City of Mount Vernon enacted Local Law No. 4 (Mount Vernon City Charter § 226-a [1]), which requires owners of income-producing real property to file an annual income and expense statement with the Commissioner of Assessment by the first day of February. The Commissioner can extend the deadline for up to 30 days "for good cause shown” (Mount Vernon City Charter § 226-a [1] [D]). If the statement is not timely filed, the Commissioner may compel production of relevant books and records by subpoena or apply for a court order requiring the owner to furnish the income and expense statement as well as related books and records (§ 226-a [4] [B]). Local Law No. 4 further specifies that, where a property owner fails to provide the requisite statement on time, "the Board of Assessment Review shall deny any complaint in relation to the assessment of such property by such owner” (§ 226-a [4] [A]).

The petitioners in these two cases are owners of income-producing commercial realty in the City of Mount Vernon. It is undisputed that both petitioners failed to file income and expense statements by the February 1, 1992 deadline as required by the local law. Moreover, neither sought an extension from the Commissioner.

Once the tentative assessment roll was established, petitioners timely filed complaints with the Board of Assessment Review seeking reduction of the 1992 tax assessments for their properties. Thereafter, on request of the Board petitioners each forwarded information regarding their business operations — including income and expense statements. The Board, however, declined to review petitioners’ claims, due to their initial failure to file the income and expense statements.

Petitioners commenced the instant proceedings for judicial review of their tax assessments under RPTL article 7. Respondents moved to dismiss the proceedings, arguing that timely filing of an income and expense statement pursuant to local law was a prerequisite to obtaining any reduction. Supreme Court denied the motions, holding that petitioners had complied with the conditions for judicial review contained in the RPTL and were thus entitled to such review.

The Appellate Division reversed, denied the petitions and dismissed the proceedings. Stressing the importance of the administrative assessment review process, the Appellate Division held that judicial review is not available to a taxpayer who failed to provide the income and expense statement in accordance with the local law. Because the requirements for judicial review of property assessments do not include compliance with local laws governing disclosure of financial information to the assessor prior to preparation of the tentative assessment roll, we agree with Supreme Court that the statutory conditions for challenging the assessment in court have been satisfied. We therefore reverse and reinstate the petitions.

Analysis

Respondents’ primary contention is that public policy supports imposing and strictly enforcing requirements for early disclosure of financial statements to local assessors. They urge that submission of such statements prior to preparation of the tentative assessment roll — as compelled by the local law— increases the accuracy of preliminary assessments and reduces the need for administrative adjustment.

As a matter of policy, encouraging efficient and accurate tentative assessments may well be a laudable goal. Our role, however, is not to determine the policy issue of how best to assure accurate assessment rolls. Our role is to determine the legal question whether a municipality, in the absence of action by the Legislature, can enforce early disclosure requirements in a manner that restricts judicial review of property assessments. We conclude that it cannot.

Our State Constitution places responsibility for providing for review of tax assessments with the Legislature (see, NY Const, art XVI, § 2). The Legislature, in the Municipal Home Rule Law, has authorized cities to adopt local laws rélating to "[t]he preparation, making, confirmation and correction of assessments of real property and the review of such assessments subject to further review by the courts as provided by law” (§ 10 [1] [ii] [c] [2] [emphasis added]). The statute thus plainly contemplates review at both the local and State levels (see, Matter of 749 Broadway Realty Corp. v Boyland, 1 AD2d 819, affd 3 NY2d 737). The Legislature, moreover, has set forth procedures and requirements for administrative review of property assessments in RPTL article 5 and for judicial review in RPTL article 7.

The Municipal Home Rule Law further specifies that local governments may not enact local laws "inconsistent with the provisions of the constitution or * * * any general law” (§ 10 [1] [ii]). Likewise, article IX of the Constitution empowers local governments to adopt laws relating to "[t]he levy, collection and administration of local taxes,” so long as those enactments are "consistent with laws enacted by the legislature” (NY Const, art IX, § 2 [c] [ii] [8]).

In 41 Kew Gardens Rd. Assocs. v Tyburski (70 NY2d 325), this Court held that a similar requirement that property owners file income and expense statements to facilitate preparation of property assessments was facially constitutional and a valid exercise of the City’s home rule power. We did not, however, address the validity of the local law’s enforcement mechanisms in Tyburski (see, 70 NY2d at 336) — the question we now confront.

Local Law No. 4 penalizes noncompliance with its filing requirement by restricting the availability of administrative correction of realty assessments. While it does not expressly bar judicial correction, the Appellate Division concluded that taxpayers who do not timely file forfeit the right to adjustment by the courts as well as by the Board. Petitioners argue that this determination renders Local Law No. 4 inconsistent with the provisions of RPTL articles 5 and 7. We agree.

Under the statutory scheme, the local assessor is responsible for investigating the facts necessary to establish a proper assessment roll (see, RPTL 500). The taxpayer is notified once the tentative assessment roll is fixed and may file a complaint requesting adjustment by the Board (see, RPTL 506, 512, 524). After all complaints have been heard and determined by the Board, the final assessment roll is established by the assessor, and a taxpayer who remains dissatisfied may seek judicial review pursuant to article 7 (see, RPTL 514, 516, 526; see also, Matter of Grossman v Board of Trustees, 44 AD2d 259 [Simons, JJ).

Like Local Law No. 4, RPTL article 5 conditions a real property owner’s entitlement to reduction on disclosure of certain relevant information. RPTL 525 (2) provides that upon administrative review the Board may compel examination of persons or production of documents relevant to the assessment. A taxpayer who "willfully neglect[s] or refuse[s] to attend and be so examined, or to answer any question put to him relevant to the complaint or assessment” is not entitled to any reduction.

RPTL 525 (2) differs from Local Law No. 4 in two significant respects. First, it does not deem failure to forward financial information to the assessor, prior to creation of the tentative assessment roll, a bar to obtaining a reduction. Rather, it merely requires disclosure to the Board during administrative review. Thus, by providing the Board with an income and expense statement and other relevant information upon request, petitioners satisfied the statutory requirements for reduction.

Second, RPTL 525 (2) precludes an adjustment only if failure to disclose the requisite information to the Board is willful. Courts have therefore refused to dismiss judicial challenges to realty assessments absent proof that noncompliance was occasioned by a desire to frustrate administrative review (Matter of Doubleday & Co. v Board of Assessors, 202 AD2d 424, 425, lv dismissed 83 NY2d 906; Matter of State of New York v Town of Northampton, 156 AD2d 857, 858-859; Matter of Salisbury v Board of Assessors, 111 AD2d 1022, 1023). Local Law No. 4, by contrast, does not limit its scope to willful noncompliance. As a result, Local Law No. 4 prohibits reduction of a realty assessment under circumstances where RPTL 525 (2) would permit it.

Petitioners complied with the requirements for court review of assessments contained in RPTL 706 (2) as well. Under that section, a judicial proceeding must be founded upon a petition stating the manner in which the assessment is excessive, unequal or unlawful or how the realty is misclassified and will result in injury to petitioner. The petition must be verified by the petitioner, petitioner’s officer, or an authorized agent. Finally, "[s]uch petition must show that a complaint was made in due time to the proper officers to correct such assessment.”

Absent from the enumerated conditions precedent to judicial review is compliance with local disclosure requirements relating to preparation of the tentative assessment roll in the first instance. Rather, RPTL 706 (2) simply requires timely protest to the appropriate reviewing authorities, which can of course only be made after the tentative or final assessment roll has been established (see, Matter of Sterling Estates v Board of Assessors, 66 NY2d 122). The petitioners here, moreover, filed timely complaints with both the Board and Supreme Court, and they satisfied the statutory requirements regarding petition contents and verification.

Consequently, to mandate that petitioners also file a preassessment income and expense statement in accordance with Local Law No. 4 in order to obtain judicial correction of their final assessments — as the Appellate Division did — effectively adds a prerequisite to judicial review not contained in RPTL articles 5 or 7.

This Court has held local government efforts to supplement the statutory conditions for maintaining a court proceeding to be inconsistent with State law and, therefore, violative of the home rule provision in the State Constitution (see, e.g., F. T. B. Realty Corp. v Goodman, 300 NY 140; see also, Tartaglia v McLaughlin, 190 Misc 266, affd 273 App Div 821, revd 297 NY 419 [due to subsequent legislation]). Indeed, in Matter of 749 Broadway Realty Corp. v Boyland (1 Misc 2d 575, affd 1 AD2d 819, affd 3 NY2d 737, supra), we affirmed a determination by the courts below that New York City could not make an identical filing requirement an express condition to court review of realty assessments. To require dismissal of RPTL article 7 proceedings upon breach of Local Law No. 4 would thus improperly allow the City of Mount Vernon to accomplish implicitly what it could not do explicitly.

We therefore conclude that petitioners — who have met the statutory requirements of RPTL articles 5 and 7 — can obtain judicial review of their realty assessments notwithstanding their breach of Local Law No. 4. To hold otherwise would impose preconditions to review that are inconsistent with the RPTL and, thus, violate the Municipal Home Rule Law and article IX of the State Constitution (see, Municipal Home Rule Law § 10 [1] [ii]; § 10 [1] [ii] [c] [2]; NY Const, art IX, § 2 [c] [ii] [8]).

We note that this conclusion is not contrary to Matter of Sterling Estates v Board of Assessors (66 NY2d 122, supra). In Sterling Estates, we held that a taxpayer who failed to register a timely protest as required by State law was not entitled to judicial review. In doing so, we emphasized the importance of administrative review to establishment of an accurate final assessment roll (see, 66 NY2d at 124-126; see also, Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371 [discussing the doctrine of exhaustion of administrative remedies]). Here, petitioners’ administrative and judicial complaints were denied merely because they failed to submit income and expense information to the local assessor — prior to commencement of the administrative review process — as required by municipal law. Importantly, "the Legislature has imposed detailed requirements on the assessors to conduct an orderly assessment process and specific conditions on the procedure by which aggrieved taxpayers obtain administrative and judicial relief’ (Matter of Sterling Estates v Board of Assessors, 66 NY2d at 125). Unlike the taxpayer in Sterling Estates, petitioners followed the requisite procedures for seeking administrative and judicial review and fully participated in the assessment review process.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and the orders of Supreme Court, Westchester County, reinstated.

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

In each case: Order reversed, etc.

      . RPTL 525 (2) provided, in relevant part: "On the date required by law, the board of assessment review shall meet to hear complaints in relation to assessments. At such meeting, the board of assessment review may administer oaths, take testimony and hear proofs in regard to any complaint and the assessment to which it relates. If not satisfied that such assessment is excessive, unequal or unlawful, or that real property is misclassified, the board may require the person whose real property is assessed, or his agent or representative, or any other person, to appear before the board and be examined concerning such complaint, and to produce any papers relating to such assessment. If the person whose real property is assessed, or his agent or representative, shall willfully neglect or refuse to attend and be so examined, or to answer any question put to him relevant to the complaint or assessment, such person shall not be entitled to any reduction of the assessment subject to the complaint.”

      . RPTL 706 (2) states in full: "A proceeding to review an assessment shall be founded upon a petition setting forth the respect in which the assessment is excessive, unequal or unlawful, or the respect in which real property is misclassified and stating that the petitioner is or will be injured thereby. Such petition shall be duly verified by the petitioner, an officer thereof, or by an agent thereof who has been authorized in writing to verify and file such petition and whose authorization is made a part of such petition. Such petition must show that a complaint was made in due time to the proper officers to correct such assessment. Two or more persons having real property assessed upon the same roll who assert the same grounds for review presenting a common question of law or fact, may unite in the same petition.”


author: Per Curiam.

text:
    [680 NE2d 594, 658 NYS2d 221]
    In the Matter of Ronald C. Robert, a Justice of the Chester Town Court, Warren County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted March 20, 1997;
    decided May 1, 1997
    POINTS OF COUNSEL

      Ronald C. Robert, Chestertown, appellant pro se.

      Gerald Stem, New York City, and Cathleen S. Cenci for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of the Chester Town Court, Warren County, was charged with violating the Rules of Judicial Conduct by presiding over cases involving his friends notwithstanding that he had been previously cautioned by the Commission on Judicial Conduct against presiding over such cases, and for confronting a woman, in the presence of her employer, after she had sent a letter to the editor of the local newspaper containing statements critical of petitioner. A hearing was held before a Referee designated by the Commission, and petitioner and several other witnesses testified. The Referee found that the factual allegations of the charges were sustained. The Commission’s majority determination did not consider the prior letter of caution that petitioner had received from the Commission. Nonetheless, the Commission confirmed the other findings of the Referee and noted that petitioner had continued to hear a number of cases involving his personal friends §ven after he was aware the Commission was examining that conduct in this proceeding. A majority of the Commission determined that petitioner had engaged in misconduct warranting removal from office (two of the members of the majority would have considered the letter of caution from the Commission in the findings of fact in the determination); three members of the Commission dissented with respect to the sanction and voted that petitioner be censured.

We conclude, after a full review of the record, that each of the charges is established. It was improper for petitioner to preside over cases involving his close friends (see, e.g., Matter of Murphy, 82 NY2d 491, 495; Matter of Fabrizio, 65 NY2d 275). We note that petitioner continues to fail to comprehend the serious nature of his conduct. Petitioner testified at the hearing that he intended to continue presiding over matters involving his friends, and suggested in his brief to this Court that the error in criticizing the letter-writer in front of her employer would have been ameliorated had he put the criticism in the form of a letter to her and her employer. The fact that the misconduct continued even after petitioner was on notice that the Commission considered his actions improper demonstrates that he is not fit for judicial office (see, Rules of Judicial Conduct [22 NYCRR] § 100.2 [a]; Matter of Hamel, 88 NY2d 317, 320) and that the sanction of removal is appropriate (Matter of Sims, 61 NY2d 349, 356).

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Wesley concur in Per Curiam opinion; Judge Ciparick taking no part.

Determined sanction accepted, without costs, and Honorable Ronald C. Robert removed from the office of Justice of the Chester Town Court, Warren County.


author: Smith, J.

text:
    [680 NE2d 595, 658 NYS2d 222]
    In the Matter of the Claim of David P. Killian, Appellant. General Motors Corporation, Delco Chassis Division, Respondent; John E. Sweeney, as Commissioner of Labor, Respondent.
    Argued March 25, 1997;
    decided May 1, 1997

      POINTS OF COUNSEL

      Francis J. Smith, Jr., Albany, for appellant.

      Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Michael R. Moravec and Sharon A. Swift of counsel), for General Motors Corporation, Delco Chassis Division, respondent.
   OPINION OF THE COURT

Smith, J.

The issue here is whether Labor Law § 511 (17) entitles claimant to unemployment compensation benefits following his return to school after working in a cooperative education program sponsored by his college. We conclude that he was not entitled to benefits and we affirm the order of the Appellate Division.

Claimant was enrolled as a full-time student at Clarkson University in Potsdam, New York. He began his attendance there in September 1989 and enrolled in a four-year program in engineering. At the time of his enrollment, Clarkson had created and sponsored a Semester in Industry Program in which four students were employed by the General Motors Corporation, Delco Chassis Division. Claimant applied for and was accepted into the program. His acceptance letter stated, "We plan to provide your work experience in the Spring and Summer of 1992.” In his acceptance letter claimant replied, "I am pleased that I will be joining you in the Spring and Summer of 1992.” Prior to beginning his work there, he signed a "Student Agreement Form” that he would work from January through August 1992. In response to a question on his application as to why he wished to work for General Motors, claimant replied, "part of the university co-op program.” His employment began in January 1992 and continued until August 1992. At that time he returned to Clarkson on a full-time basis. Prior to leaving his job, he signed an "Exit Interview Voluntary Quit” form which gave his reason for leaving as "return to school.”

Following his work at General Motors, claimant sought unemployment compensation benefits. He was found eligible to receive benefits. Following this initial determination, a hearing was held before an Administrative Law Judge. By a decision dated February 23, 1993, the ALJ found that the services performed by claimant were excluded from the term "employment” as provided in Labor Law § 511 (17) and that claimant was ineligible to receive benefits. The Unemployment Insurance Appeal Board then reversed the decision of the ALJ. The Board concluded that the services rendered by claimant were not a part of the school’s curriculum, that the primary purpose of the job was to enhance future employment, that the claimant engaged in employment pursuant to Labor Law § 511 (17) and that the claimant did not voluntarily leave his employment. On appeal, the Appellate Division, with two Justices dissenting, reversed the ruling of the Board. The Appellate Division concluded that the plain language of Labor Law § 511 (17) and the legislative intent behind that section precluded compensation to the claimant. He appeals as of right pursuant to CPLR 5602 (a).

Claimant contends that the Board’s decision that Labor Law § 511 (17) is inapplicable to this case is not irrational, is supported by substantial evidence and should be given deference. He further contends that the issue of whether he was available to continue working is not before this Court. Respondent General Motors contends that the Board misinterpreted the statute, that its decision was irrational and that claimant was unavailable to continue work.

Labor Law § 511 (17) excludes the cooperative education program in which claimant was engaged from employment covered by unemployment compensation. That section reads as follows:

"The term 'employment’ does not include service performed by an individual under the age of twenty-two[] who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so certified to the employer, except that this subdivision shall not apply to service performed in a program established for or on behalf of an employer or group of employers.”

Where a decision involves the special expertise of the Board, its interpretation of a statute must be given deference. Where, however, a matter involves statutory interpretation and does not involve the expertise of the Board, the meaning of the statute is for this Court to determine (Matter of Gruber [New York City Dept. of Personnel], 89 NY2d 225, 231; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

The questions of statutory interpretation here are whether (1) the terms "taken for credit” found in Labor Law § 511 (17) require, as the Appeal Board held, that the student receive credit for the cooperative educational program and (2) the statute implicitly requires that the cooperative program be a "mandatory” part of the curriculum before the statutory exclusion from the definition of covered employment applies. The section contains no terms of art involving agency knowledge or expertise or understanding of underlying operational practices and the construction does not entail "an evaluation of factual data and inferences to be drawn therefrom” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d, at 459, supra). Thus, the statutory question can be resolved by this Court’s resort to the plain language of the statute and reference to legislative intent, and no agency deference is warranted.

Under the plain language of the statute, it is evident that the section does not mandate that students receive academic credit for services rendered in a cooperative program before those services will be excluded from covered employment. The term "taken for credit” modifies the full-time program in which the student is enrolled and not the work experience. Thus, the Board’s determination that the services must be performed for credit is contradicted by the plain language of the statute.

The Board also determined that participation in a cooperative program must be "mandatory” for the exclusion of section 511 (17) to apply. This construction is also belied by the statute’s plain language which omits any requirement that the work-study program be a mandatory part of the student’s coursework.

Contrary to the decision of the Board, our conclusion that the claimant is not entitled to benefits is also supported by the legislative intent underlying the enactment of the unemployment insurance scheme. First, the legislative history indicates that one objective of the legislation was to conform New York law to Federal law which precluded unemployment compensation upon leaving a cooperative education employment program.

Second, the policy of New York State as declared by the Legislature is that "involuntary unemployment” is a serious menace to the health and welfare of the State and that those involuntarily removed from employment "through no fault of their own” should be maintained (Labor Law § 501). Claimant not only signed a statement at the beginning of his employment that he would work for a limited period but also signed an exit interview that he was voluntarily leaving his employment and returning to school on a full-time basis. The program was administered by the college in which he was a student. While he was not taking courses during the time of his employment, claimant was still considered a student by the college, and maintained health insurance through the college. Third, it is clear that claimant was not ready, willing and able to work at the time he returned to college as a full-time student (see, Labor Law § 591 [2]). The record is clear that from the beginning of his employment, claimant intended to return to college to complete his education.

Finally, to conclude that the respondent is responsible for unemployment insurance benefits not only would be counter to the plain words of Labor Law § 511 (17) but also would jeopardize business involvement in programs such as this one because of the potential for unemployment insurance liability.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Ciparick and Wesley concur; Judge Levine taking no part.

Order affirmed, with costs.

      . While the Commissioner of Labor joined in the proceedings before the Appellate Division, he is not a party to this appeal.

      . Effective November 17, 1994, the statute was amended by replacing the phrase "under the age of twenty-two” with the phrase "regardless of age.

      . See Pub L 91-373 § 106 (a) which, in 1970, amended 26 USC § 3306 (c) (10) by adding clause (C).


author: Wesley, J.

text:
    [680 NE2d 598, 658 NYS2d 225]
    The People of the State of New York, Appellant, v Eric Wilson, Respondent.
    Argued March 18, 1997;
    decided May 6, 1997

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (James W. Keys, John M. Castellano and Linda Cantoni of counsel), for appellant.

      Arthur H. Hopkirk, New York City, Daniel L. Greenberg and David Crow for respondent.
   OPINION OF THE COURT

Wesley, J.

In this case we are called upon once again to examine the interrelationship of an investigatory lineup and a suspect’s right to counsel. We hold that, under the facts of this case, an attorney-client relationship was established and the investigatory lineup, therefore, could not be conducted without counsel present absent exigent circumstances.

At approximately 8:00 p.m. on June 24, 1990 defendant Eric Wilson and three other individuals were arrested after their vehicle was involved in an accident with a police car in Brooklyn. They were arraigned on June 26, 1990 in Brooklyn on charges of criminal possession of a stolen vehicle and criminal possession of a weapon. The weapon, a sawed-off rifle, was identified as having been the same weapon used to kill Arkady Novikov in Queens County in the early morning hours of June 24, 1990. On June 28, 1990, an eyewitness to the shooting picked defendant’s photograph from a photo array and indicated that defendant had been involved in the shooting.

On June 29, 1990, defendant appeared in Brooklyn Criminal Court for a preliminary hearing on the Brooklyn charges. Defendant was represented by Norman Berle, an attorney from the Brooklyn Criminal Defense Division of the Legal Aid Society. After the case was called, Berle became aware that several Queens detectives were in the courtroom and were interested in his client. Berle approached the detectives and informed them that he represented defendant and that defendant was not to be questioned or put in a lineup in Berle’s absence.

That afternoon, Berle was informed that defendant’s case was going to be recalled and dismissed. Berle then visited defendant in a holding cell; defendant informed Berle that he wanted Berle to continue to be his lawyer "no matter what” and that he did not wish to speak to the detectives or to participate in a lineup without Berle being present. When the case was recalled, defendant was not produced. In defendant’s absence, Berle informed the court and the Queens detectives that he did not want defendant to be questioned about the Queens case, or to be put into a lineup, unless he was present. On the People’s motion, the Brooklyn charges were dismissed against defendant. When the Queens detectives came to take defendant into custody later that day, Berle again repeated his admonitions to them.

At the precinct in Queens, at approximately 7:30 p.m. that same day, defendant was advised of his Miranda rights and waived them. He was asked about the Queens homicide and denied any knowledge of it, offering an alibi. According to Detective Salzmann, defendant was asked by the detective whether he wanted an attorney to be present during a lineup, and defendant responded that he had none. At approximately 10:35 p.m., a lineup was conducted, and the eyewitness identified defendant as the man who had shot Novikov. The record reflects no effort by the police to contact attorney Berle, nor do the People claim any.

At the suppression hearing, the prosecutor stated that the People would not use defendant’s statements in their direct case. Supreme Court, Queens County, denied defendant’s motion to suppress the lineup identification because it concluded that the identification was not obtained in violation of defendant’s right to counsel. The court held that Berle was no longer defendant’s attorney at the time of the lineup because the dismissal of the Brooklyn case had terminated the attorney-client relationship. The court relied upon our holding in People v Robles (72 NY2d 689); however, it made no finding that the Brooklyn charges were unrelated to the Queens charges (cf., People v Robles, supra, at 697-698). The court further found that defendant’s right to counsel with regard to the Queens lineup procedure had never independently attached. The court noted that, pursuant to a well-established line of this Court’s cases (People v Coates, 74 NY2d 244; People v Hawkins, 55 NY2d 474; and People v Blake, 35 NY2d 331), defendant had no right to counsel at the investigatory lineup unless he had actually had an attorney. Following a jury trial, defendant was convicted of murder in the second degree and various robbery and weapons charges arising out of the incident in Queens.

The Appellate Division reversed the conviction, granted defendant’s motion to suppress the lineup identification, and ordered a new trial, before which the People would be entitled to a hearing to attempt to establish an independent source for the in-court identification testimony of the eyewitness (219 AD2d 164). Two of the Justices held that the dismissal of the Brooklyn charges had no impact on the relationship between Berle and defendant in light of defendant’s requests that Berle continue to represent him on the Queens matter. The Justices also held that the Brooklyn charges and the Queens charges were merely different aspects of the same case. A third Justice concurred with the result, writing separately to focus on the police action in securing a waiver/renunciation of defendant’s previously invoked right to counsel; Two Justices dissented, on the grounds that defendant’s right to counsel had not indelibly attached "upon the unilateral pronouncement of continued representation made by the defendant’s assigned representative in the context of an unrelated and dismissed matter” (219 AD2d, at 170); that defendant did not invoke his right to counsel at the lineup; and that the involvement of the same weapon did not create a relationship between the Brooklyn and Queens charges for the purposes of a right to counsel analysis. The appeal comes to us pursuant to permission granted by a Justice of the Appellate Division; we affirm the order granting a new trial.

A defendant has no right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution at a lineup that occurs prior to the initiation of formal prosecutorial proceedings (Kirby v Illinois, 406 US 682, 688-689; People v Hawkins, 55 NY2d 474, 482). The Fifth Amendment protection against self-incrimination is also not implicated at a preindictment lineup (People v Hawkins, supra, at 482-483). Similarly, there is generally no independent basis in the State Constitution for requiring counsel at investigatory lineups, although a right to counsel does arise after the initiation of formal prosecutorial proceedings (People v Hawkins, supra, at 487). At the time of the lineup, a felony complaint had not been filed in Queens County and there had been no other significant judicial activity sufficient to trigger the right to counsel (see, People v Samuels, 49 NY2d 218, 221).

Nevertheless, "if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings” (People v Hawkins, supra, at 487). Berle’s uncontradicted testimony supports the determination of the Appellate Division that defendant had asked Berle to represent him in the Queens matter, and that the Queens detectives were made aware of the attorney-client relationship when Berle announced it in the Brooklyn courtroom (see, People v LaClere, 76 NY2d 670). Furthermore, we agree with the Appellate Division that once defendant actually was represented by counsel, the alleged waiver of his right to counsel without his attorney present was ineffective (see, People v Settles, 46 NY2d 154).

In LaClere, the defendant had been arrested following a court appearance with counsel on an unrelated matter. The attorney asked the presiding Judge to advise the arresting officers that he also represented the defendant on the matter for which the defendant was then being arrested, and that the police should not take any statements from his client in his absence. The Judge gave the requested admonition, but the police conducted a lineup later the same day without notifying counsel. We noted that, after People v Coates (74 NY2d 244), counsel’s representation of the defendant on the prior unrelated matter would not have entitled the defendant to counsel at an investigatory lineup unless the defendant had specifically asked for counsel (People v LaClere, supra, at 673-674). We held, however, that the announcement to the Judge that counsel represented the defendant in the new case and that counsel wanted the police to be informed of it by the court sufficed to create the requirement that counsel be notified and given the opportunity to attend the lineup (People v LaClere, supra, at 674). Here, the police and trial court were simultaneously informed in open court at a key official stage of the Brooklyn proceeding.

Although the attorney in LaClere sought and obtained a judicial admonition that he represented the defendant and that the police should not take any statements from his client, we do not believe that the absence of such a judicial admonition in this case requires a result contrary to LaClere. Here, counsel unequivocally informed the Queens detectives three separate times (once before the court) that he would represent defendant in the Queens matter and that no statements should be taken or lineups conducted in his absence. "In conducting the lineup in these circumstances, without some notice or other legally recognized excusal of counsel’s presence, the police took the risk that the adduced evidence would not be allowed” (People v LaClere, supra, at 672).

As we noted in LaClere (supra, at 673) the right to counsel at an investigatory lineup is not absolute or abstract, and may be overriden if exigent circumstances necessitate that the procedure be conducted without counsel’s presence. In this case, the People claimed no exigent circumstances to merit conducting the lineup in counsel’s absence.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.