New York State Restaurant Ass'n v. Board of Standards & Appeals , 38 Misc. 2d 1023 ( 1963 )

Isadore Bookstein, J.

In this article 78 proceeding, petitioner directed its petition to the Appellate Division, Third Department. Petitioner served no notice of application or order to show cause, based upon said petition.

Thereafter, petitioner moved in the Appellate Division for an order transferring the petition to Supreme Court, Albany County. Respondents appeared specially and moved to dismiss on the ground that no jurisdiction was obtained by the Appellate Division as no process was served on respondents but that only the petition was served. Ultimately, the Appellate Division transferred this proceeding and stated: “ We do not pass upon any jurisdictional or other questions that may be properly raised before the Special Term upon proper application.” (18 A D 2d 1135.)

The matter has now come before this Special Term and respondents appear specially and in effect move for a dismissal of the proceeding on the ground that the court has no jurisdiction of respondents, since no process was served on them.

Concededly, the only paper served herein was the petition. No notice of application for the relief sought by the petition was served. Nor was any order to show cause based on such petition ever served.

Jurisdiction of the person of a defendant or respondent is obtained by some form of service of process. In the case of an action, it is by service of a summons. In the case of an article 78 proceeding, it is by service of a notice of application to a court having jurisdiction, returnable before such court at a definite time and place or by an order to show cause returnable in the same manner.

Jurisdiction is not obtained by service of a pleading, such as a complaint in an action or a petition in an article 78 proceeding.

The argument that the court has the power to correct the situation here presented, as an irregularity, is not tenable. A court can correct a mere irregularity, once it has obtained jurisdiction of the person of a defendant or a respondent, by the service of process. It cannot, in the guise of correcting an irregularity or in liberality, obtain jurisdiction of a person, when such jurisdiction has not yet been obtained by the service of process upon him.

Motion of respondents must be granted.