June 08, 2020

Proper service on a necessary party is critical to satisfying jurisdictional requirements

The employee in this action [Petitioner] submitted two appeals to the Commissioner of Education challenging her School District employer's changing her full-time position to a part-time position. Ultimately the Commissioner consolidated the two appeals and dismissed them, finding that they were both procedurally and substantively deficient. Petitioner then commenced a CPLR Article 78 proceeding against, among others, the Commissioner and the Department of Education [State].

The State move to dismiss the action, advancing the affirmative defense of lack of personal jurisdiction due to defective service. Supreme Court determined that Petitioner had failed to properly serve the State and that, inasmuch as the Commissioner was a necessary party, "the failure to obtain personal jurisdiction over her warranted dismissal of the proceeding in its entirety." Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division explained that although Petitioner had effectuated service upon the Commissioner and the Department of Education, that service was jurisdictionally defective inasmuch as Petitioner failed to also "serve a copy of the notice of petition on the Attorney General's office as required by CPLR §7804 (c)." Observing that the Commissioner, at a minimum, was a necessary party given that the proceeding was commenced to challenge the Commissioner's determination, the court said that contrary to Petitioner's contention, "her pro se* status and the Attorney General's actual awareness of the proceeding" did not serve to cure or excuse Petitioner's failing to serve necessary parties.

Finding that Supreme Court properly concluded that the failure to obtain personal jurisdiction over the Commissioner warranted dismissal of the Article 78 proceeding in its entirety, the Appellate Division affirmed the lower court's ruling.

* Latin: A term use to describe a litigant representing himself or acting on his own behalf in a civil action. 

The decision is posted on the Internet at:

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