Standing, as any law school student will tell you, is an essential requirement for the commencement of litigation. New York courts have historically recognized standing as an element of justiciability that restricts the courts' ability to adjudicate a matter. However, over recent decades, New York courts have weakened the standing requirement by holding that any objection or defense based on lack of standing is waived if not asserted in an answer or pre-answer motion to dismiss. Although this development may be difficult to reconcile with the principle of the separation of powers, it remains, unmistakably, the current state of the law in New York and practitioners should be wary of inadvertently waiving this valuable defense.

Origin of the Doctrine of Justiciability

The doctrine of justiciability arose from the principle of the separation of powers. Although separation of powers is traced most clearly to the Federal Constitution, that principle was included by implication in the structure of New York state's government, id., and has been characterized as the bedrock of the system of government adopted by New York state, Garcia v. N.Y.C. Dep't of Health & Mental Hygiene, 31 N.Y.3d 601, 608 (2018).

The Court of Appeals has recognized that “[j]usticiability is an 'untidy' concept but it embraces the constitutional doctrine of separation of powers and refers, in the broad sense, to matters resolvable by the judicial branch of government as opposed to the executive or legislative branches or their extensions.” Jiggetts v. Grinker, 75 N.Y.2d 411, 415 (1990). The doctrine of justiciability in New York encompasses the elements of, among other things, mootness, political question, ripeness, and standing. Jones v. Beame, 45 N.Y.2d 402, 408 (1978); Community Bd. 7 of the Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 154 (1994).

In other words, the broad framework for standing is as follows: the doctrine of justiciability is part of the principle of separation of powers and standing is an element of justiciability. Although this framework provides context for discussing standing, before analyzing the current case law governing standing and waiver, it is helpful to also understand the purpose of, and requirements for, standing.

The Standing Element of Justiciability

Standing in New York is governed by common law. See Society of Plastics Industry v. County of Suffolk, 77 N.Y.2d 761, 772 (1991); Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 812 (2003). New York common law requires that “the litigant have something truly at stake in a genuine controversy.” Saratoga County Chamber of Commerce, Inc., 100 N.Y.2d at 812. More specifically, under New York common law, a court lacks power to adjudicate a wrong where the plaintiff has no injury. Society of Plastics Industry, 77 N.Y.2d at 772 (1991).

At the beginning of this century, the Court of Appeals firmly clarified the purpose and character of the standing requirement, harkening back to justiciability:

Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress … The rules governing standing help courts separate the tangible from the abstract or speculative injury, and the genuinely aggrieved from the judicial dilettante or amorphous claimant.

Saratoga County Chamber of Commerce, 100 N.Y.2d at 812.

Clearly the requirements for, and purpose of, standing are firmly rooted in New York jurisprudence. So how did the case law evolve to a point that lack of standing could be waived? The answer requires a brief discussion of CPLR 3211 and capacity to sue.

CPLR 3211

CPLR 3211(a) identifies the grounds on which a party may move to dismiss a cause of action before filing a responsive pleading. Included in those grounds are lack of subject-matter jurisdiction and lack of capacity to sue. CPLR 3211(a)(2), (3). Under 3211(e), a party waives any objection or defense predicated on lack of capacity if the party fails to raise the same in a responsive pleading or pre-pleading motion to dismiss. In contrast, a party cannot waive an objection or defense predicated on lack of subject-matter jurisdiction. See CPLR 3211(e).

Capacity to Sue

The Court of Appeals addressed the distinction between capacity to sue and standing last year in In re World Trade Center Lower Manhattan Disaster Site Litigation. 30 N.Y.3d 377 (2018). In that decision, the Court explained that “[c]apacity 'concerns a litigant's power to appear and bring its grievance before the court.'” Id. at 384 (citation omitted). Recognizing wide-spread confusion between capacity and standing, the Court further explained that standing “relates to whether a party has suffered an 'injury in fact' conferring a 'concrete interest in prosecuting the action.'” Id. (citation omitted). The Court went on to explicitly distinguish the two concepts: “Capacity, unlike standing, does not concern the injury a party suffered, but whether the legislature invested that party with authority to seek relief in court.” Id.

Standing and Waiver

It is against this backdrop that the current state of waiver and standing in New York should be analyzed. Although the case law is not infallible, recent decisions of the Appellate Division and Court of Appeals have overwhelmingly and consistently held that standing can be waived. These decisions are predicated on the resolution of the following issue: whether standing goes to subject-matter jurisdiction under CPLR 3211(a)(2) and therefore, cannot be waived, or whether standing goes to capacity under CPLR 3211(a)(3) and therefore, can be waived if not asserted in a pre-answer motion or in an answer. (An argument could be made that the premise of this issue is false because, perhaps, standing simply does not fit into any of the grounds for dismissal provided by CPLR 3211. However, a motion to dismiss under CPLR 3211(a) must be founded on a ground provided in that subdivision and it does not appear that standing falls within any other section of the CPLR authorizing dismissal. See David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3211:5.) This issue was center-stage in the Second Department's decision in Wells Fargo Bank Minnesota, Nat'l Ass'n v. Mastropaolo, which has become a guiding light for the Appellate Divisions on the issue of standing and waiver. 42 A.D.3d 239 (2d Dep't 2007).

Mastropaolo was a mortgage foreclosure action in which lack of standing was not asserted by the defendant, Mastropaolo, in his answer or a pre-answer motion to dismiss. Id. at 240. The plaintiff, Wells Fargo, later moved for, among other things, summary judgment in its favor. Id. In opposition to the motion, Mastropaolo raised lack of standing for the first time in his attorney affirmation, arguing that Wells Fargo was not the legal title holder to the mortgage when the action was commenced. Id. at 241. The Supreme Court denied Wells Fargo's motion on the ground that it lacked standing to commence the action and sua sponte dismissed the action with prejudice. Id.

Wells Fargo appealed, arguing that Mastropaolo waived any defense or objection based on lack of standing by failing to assert the issue in his answer. Id. The Second Department framed the issue on appeal as follows: “[W]hether a defense based on lack of standing is more akin to the defense that the plaintiff 'has not legal capacity to sue,' as set forth in CPLR 3211(a)(3), or to the nonwaivable defense that the court lacks subject matter jurisdiction, as set forth in CPLR 3211(a)(2).” Id. at 242.

The Second Department determined that standing did not go to subject-matter jurisdiction, rather it went to capacity, which could be waived. That determination relied on two legal conclusions. First, the Supreme Courts are courts of general jurisdiction and, therefore, they “undisputably ha[ve] the power to entertain mortgage foreclosure actions like this one.” Id. at 244. Second, “for purposes of the waiver rule set forth in CPLR 3211(e), standing and capacity to sue are sufficiently related that they should be afforded identical treatment.” Id. at 243. Although the second legal conclusion appears difficult to reconcile with the doctrine of justiciability and the distinction between capacity and standing, that conclusion remains good law today.

The Second Department referenced three Court of Appeals decisions in support of its conclusion that standing and capacity are treated identically for purposes of CPLR 3211(e): Fossella v. Dinkins, 66 N.Y.2d 162, 167-68 (1985); Dougherty v. City of Rye, 63 N.Y.2d 989, 991-92 (1984); Prudco Realty Corp v. Palermo, 60 N.Y.2d 656, 657 (1983). Each of those cases determined that, because lack of standing had not been raised in an answer or pre-answer motion to dismiss, it had been waived. Id. In each case, the Court of Appeals cited CPLR 3211(e). Id. Although not cited by the Second Department, in Pataki v. N.Y.S. Assembly, 4 N.Y.3d 75, 88 (2004), the Court of Appels reiterated that lack of standing was a defense that could be waived. In Pataki, the Court of Appeals cited CPLR 3018(b), further implying that lack of standing was an affirmative defense. Id.

Subsequent decisions from the Court of Appeals that have described standing as “jurisdictional” or “threshold” are of little consequence because waivable defenses are not limited to those that are non-jurisdictional or non-threshold. For example, the Court of Appeals has acknowledged that other “threshold” defects are subject to waiver. See, e.g., Fry v. Village of Tarrytown, 89 N.Y.2d 714 (1997) (defect in filing was threshold issue that was subject to waiver). Further, the Court of Appeals has recognized that “jurisdiction” is not a term of art, rather it “is a word of elastic, diverse, and disparate meanings.” Lacks v. Lacks, 41 N.Y.2d 71, 74 (1976). Moreover, there are no decisions from the Court of Appeals to support the more general argument that elements of justiciability cannot be waived. Cf. Acevedo v. N.Y.S. Dep't of Motor Vehicles, 132 A.D.3d 112, 117 n.3 (3d Dep't 2015) (broadly stating “justiciability cannot be waived”).

Accordingly, the controlling law remains that a defendant must assert lack of standing in a pre-answer motion to dismiss or an answer, otherwise it will be deemed waived. (If lack of standing is asserted in an answer or pre-answer motion to dismiss, the Appellate Division may raise the issue sua sponte. See, e.g., Uhlfelder v. Weinshall, 47 A.D.3d 169 (1st Dep't 2007).) Certainly another rational and, perhaps, more sensible rule would be that standing is jurisdictional and cannot be waived even though it does not go to subject-matter jurisdiction. Nevertheless, until the Court of Appeals or legislature revisits the issue, lack of standing remains subject to waiver and practitioners should take care that they do not inadvertently abandon such a valuable defense.

Theresa Frame is a court attorney at the New York State Supreme Court, Appellate Division, First Department. The opinions expressed are those of the author and do not necessarily represent the views of the Appellate Division.