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.
декабря 17, 2018 at 02:35 PM
By Theresa Frame | декабря 17, 2018 at 02:35 PM
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.
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).
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