Part I, yesterday, began the analysis of whether standing has a jurisdictional impact by examining the epicenter of appellate review, the doctrine of preservation, standing, subject matter jurisdiction, and the treatment of standing in the First Department. Part II continues the analysis in the other courts.

Second Department

In Wells Fargo Bank Minnesota, Nat. Ass’n v. Mastropaolo, 42 AD3d 239 [2d Dept 2007], a mortgage foreclosure action, the Second Department held that lack of standing to commence an action is a defense that is waived if not raised in an answer, or in a pre-answer motion to dismiss the complaint, ergo nonjurisdictional. Mastropaolo, in a lengthy analysis, stated that the First and Third Department rulings that standing goes to subject matter jurisdiction rendered this issue “unsettled”:

The reasoning underlying [the First and Third Department] decisions is that where there is no aggrieved party, there is no genuine controversy, and where there is no genuine controversy, there is no subject matter jurisdiction. These decisions cannot be reconciled with the Court of Appeals authority cited above. Moreover, they confuse a plaintiff’s right to recovery with the court’s power to hear the case. A court lacks subject matter jurisdiction when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, “[t]he 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” (Fry v. Village of Tarrytown, 89 N.Y.2d 714 … ). Whether the action is pursued by the proper party is an issue separate from the subject matter of the action or proceeding, and does not affect the court’s power to entertain the case before it.