Illinois Official Reports

Appellate Court

Oliver v. Kuriakos-Ciesil, 2020 IL App (4th) 190250

Appellate Court 

Caption

ALOYSIUS M. OLIVER, Plaintiff-Appellant, v. MARIA 

KURIAKOS-CIESIL, Defendant-Appellee.

District & No. Fourth District 

No. 4-19-0250

Filed August 13, 2020

Decision Under 

Review

Appeal from the Circuit Court of Livingston County, No. 18-MR-99; 

the Hon. Jennifer H. Bauknecht, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Aloysius M. Oliver, of Pontiac, appellant pro se.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, 

Solicitor General, and Benjamin F. Jacobson, Assistant Attorney 

General, of counsel), for appellee.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justice Knecht concurred in the judgment and opinion.

Justice DeArmond specially concurred, with opinion.
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OPINION

¶ 1 Plaintiff, Aloysius Oliver, an inmate in the Illinois Department of Corrections, appeals the 

Livingston County circuit court’s dismissal of his mandamus action, seeking an order directing 

defendant, Maria Kuriakos-Ciesil, a Cook County circuit judge, to vacate his first degree 

murder conviction. On defendant’s motion, the Livingston County court dismissed plaintiff’s 

action. He appeals, and we affirm.

¶ 2 I. BACKGROUND

¶ 3 In January 2004, plaintiff was convicted of first degree murder for the killing of a Chicago 

police officer. The trial court sentenced him to natural life in prison. On appeal, plaintiff’s 

conviction and sentence were affirmed. People v. Oliver, No. 1-04-3078 (2009) (unpublished 

order under Illinois Supreme Court Rule 23). In May 2010, plaintiff filed a postconviction 

petition claiming ineffective assistance of counsel for an unauthorized waiver of his presence 

during an in camera conference on jury selection. The court dismissed that petition, and its 

dismissal was also affirmed on appeal. People v. Oliver, 2012 IL App (1st) 102531, 972 N.E.2d 

199.

¶ 4 In October 2017, plaintiff petitioned for relief from judgment under section 2-1401 of the 

Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)) in the Cook County circuit 

court, contending he had “newly discovered evidence” to show the trial court erred by denying 

defense requests to depose two police officer witnesses and subpoena their records from the 

Office of Professional Responsibility to impeach the officers at his murder trial 13 years earlier. 

Plaintiff also argued his convictions were void because, before trial, the State dismissed the 

counts for which plaintiff was otherwise eligible for a life sentence and that he was entitled to 

either a dismissal of his indictment, a new trial, or a new sentencing hearing.

¶ 5 In June 2018, plaintiff filed a “Petition/Complaint for Writ of Mandamus” in the Livingston 

County circuit court. He sought “an order of mandamus” compelling defendant to dismiss the 

indictment in his murder case, grant him a new trial, or allow for a new sentencing hearing.

¶ 6 In October 2018, defendant filed an amended combined motion to dismiss pursuant to 

section 2-619.1 of the Code (id. § 2-619.1), claiming the Livingston County circuit court 

lacked jurisdiction or, in the alternative, plaintiff was unable to state a claim for mandamus

relief. In April 2019, the circuit court dismissed plaintiff’s petition. It found plaintiff failed to 

state a proper cause of action for mandamus and was not entitled to the relief requested. The 

court further questioned whether it had jurisdiction to consider plaintiff’s mandamus request, 

although it did not identify this concern as a basis for its dismissal. 

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, plaintiff challenges the circuit court’s dismissal of his mandamus petition. 

Defendant responds, arguing this court should affirm the court’s dismissal based upon both a 

lack of jurisdiction and because plaintiff failed to state a cause of action for mandamus relief. 

We agree with defendant’s latter contention.
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¶ 10 A. Standards of Review for a Combined Motion to Dismiss

¶ 11 Defendant filed a section 2-619.1 motion before the circuit court seeking dismissal of 

plaintiff’s mandamus action under sections 2-615 and 2-619 of the Code (see id. §§ 2-615, 2-

619). Our review of a dismissal under either section is de novo. Lutkauskas v. Ricker, 2015 IL 

117090, ¶ 29, 28 N.E.3d 727.

¶ 12 “A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint.” Id. As 

this court has said many times before, the defendant is saying, “ ‘So what? The facts the 

plaintiff has pleaded do not state a cause of action against me.’ ” Grant v. State, 2018 IL App 

(4th) 170920, ¶ 12, 110 N.E.3d 1089 (quoting Winters v. Wangler, 386 Ill. App. 3d 788, 792, 

898 N.E.2d 776, 779 (2008)). “When ruling on such a motion, the court must accept as true all 

well-pleaded facts in the complaint, as well as any reasonable inferences that may arise from 

those facts.” Id. “A complaint should be dismissed under section 2-615 only if it is clearly 

apparent from the pleadings that no set of facts can be proved that would entitle the plaintiff to 

recover.” In re Estate of Powell, 2014 IL 115997, ¶ 12, 12 N.E.3d 14.

¶ 13 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and all 

well-pleaded facts and reasonable inferences therefrom but asserts some affirmative matter 

outside the complaint that defeats the cause of action. Grant, 2018 IL App (4th) 170920, ¶ 13. 

Here, the respondent says, “ ‘[y]es’ ” the complaint is legally sufficient, but some affirmative 

matter exists to defeat the claim; what we refer to as the “ ‘[y]es, but’ ” motion. Winters, 386 

Ill. App. 3d at 792. “When ruling on a section 2-619 motion, the court construes the pleadings 

in the light most favorable to the nonmoving party and should only grant the motion if the 

plaintiff can prove no set of facts that would support a cause of action.” Grant, 2018 IL App 

(4th) 170920, ¶ 13.

¶ 14 B. Section 2-619 Motion to Dismiss for Lack of Jurisdiction

¶ 15 On appeal, defendant first argues dismissal of plaintiff’s mandamus complaint was 

warranted because the Livingston County circuit court lacked jurisdiction to direct defendant’s 

actions, i.e., the actions of a judge in another circuit. Lack of jurisdiction is one type of 

affirmative matter that may properly be raised by a section 2-619 motion. Leetaru v. Board of 

Trustees of the University of Illinois, 2015 IL 117485, ¶ 41, 32 N.E.3d 583. Although we agree 

that a circuit court judge may not properly review or direct the actions of another circuit court 

judge, we disagree that such circumstances necessarily present an issue of jurisdiction. 

¶ 16 “[T]he ‘orderly administration of justice does not permit one court of this state to ignore 

*** another court of this state.’ ” (Emphasis omitted.) A.E. Staley Manufacturing Co. v. Swift 

& Co., 84 Ill. 2d 245, 255, 419 N.E.2d 23, 28 (1980) (quoting People ex rel. Lehman v. 

Lehman, 34 Ill. 2d 286, 292, 215 N.E.2d 806, 810 (1966)). Stated another way, “[o]ne circuit 

judge may not review or disregard the orders of another circuit judge in the judicial system of 

this State [citation], and such action can only serve to diminish respect for and public 

confidence in our judiciary [citation].” People ex rel. Phillips Petroleum Co. v. Gitchoff, 65 

Ill. 2d 249, 257, 357 N.E.2d 534, 538 (1976); see People ex rel. East Side Levee & Sanitary 

District v. Madison County Levee & Sanitary District, 54 Ill. 2d 442, 445, 298 N.E.2d 177, 

179 (1973) (finding a court’s “acceptance of jurisdiction and issuance of orders conflicting 

with those of [another] court was not only clearly erroneous, but that such action [would] only 

serve to diminish public respect for the judicial system of this State”).
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¶ 17 Nevertheless, “jurisdiction” is composed of two distinct elements: subject matter 

jurisdiction and personal jurisdiction. In re M.W., 232 Ill. 2d 408, 414, 905 N.E.2d 757, 763 

(2009). A circuit court’s subject matter jurisdiction is conferred by our state constitution and 

extends to all “justiciable matters.” McCormick v. Robertson, 2015 IL 118230, ¶¶ 19-20, 28 

N.E.3d 795. “[A] matter is considered justiciable when it presents ‘a controversy appropriate 

for review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, 

touching upon the legal relations of parties having adverse legal interests.’ ” Id. ¶ 21 (quoting 

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335, 770 N.E.2d 

177, 184 (2002)). 

“[T]he question of subject matter jurisdiction is a matter of the justiciability of the 

class of cases to which the instant case belongs. Error or irregularity in the proceeding, 

while it may require reversal of the court’s judgment on appeal, does not oust subject 

matter jurisdiction once it is acquired.” M.W., 232 Ill. 2d at 423. 

¶ 18 “[P]ersonal jurisdiction is ‘derived from the actions of the person sought to be bound.’ ” 

Id. at 426 (quoting Meldoc Properties v. Prezell, 158 Ill. App. 3d 212, 216, 511 N.E.2d 861, 

864 (1987)). “A respondent or defendant may consent to personal jurisdiction by his 

appearance, or he may have personal jurisdiction imposed upon him by effective service of 

summons.” Id.

¶ 19 Here, defendant does not argue that either subject matter jurisdiction or personal 

jurisdiction was lacking. Indeed, plaintiff’s mandamus action presented a “justiciable matter” 

as defined in McCormick. Further, defendant, who was served with the petition, did not object 

to personal jurisdiction. Thus, the Livingston County circuit court possessed jurisdiction. We 

note, however, that the court could have declined to exercise its jurisdiction in this matter in 

light of the fact plaintiff’s section 2-1401 petition, which essentially sought the same relief, 

was pending in the circuit court of Cook County. See East Side Levee, 54 Ill. 2d at 445 (“[T]he 

clearly proper course of action for the Madison County court was to decline jurisdiction in 

light of the pending St. Clair County litigation in which precisely the same relief could have 

been sought.”).

¶ 20 C. Section 2-615 Motion to Dismiss for Failure

to State a Cause of Action

¶ 21 On appeal, defendant alternatively claims plaintiff’s complaint was properly dismissed for 

failing to state a cause of action for mandamus relief. As stated, we agree with this contention.

¶ 22 Mandamus is an extraordinary remedy compelling a public official to perform a purely 

ministerial act that does not involve the exercise of discretion. People ex rel. Berlin v. Bakalis, 

2018 IL 122435, ¶ 16, 106 N.E.3d 979. The petitioner must establish (1) a clear right to the 

relief requested, (2) a clear duty of the public official to act, and (3) clear authority of the public 

official to comply. People ex rel. Glasgow v. Carlson, 2016 IL 120544, ¶ 15, 72 N.E.3d 340.

¶ 23 Here, plaintiff asked the Livingston County circuit court to grant him a reversal of his 

conviction, a new trial, or a new sentencing hearing. Unfortunately for plaintiff, mandamus

does not serve as a substitute for, or method to circumvent, an appeal. People ex rel. Waller v. 

McKoski, 195 Ill. 2d 393, 398, 748 N.E.2d 175, 178 (2001). Although mandamus may be used 

to prevent judges from acting where they have no jurisdiction or to prevent acts beyond the 

scope of judges’ jurisdictional authority, “original actions of mandamus and prohibition or 
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supervisory orders may not be used to circumvent the normal appellate process.” People ex rel. 

Foreman v. Nash, 118 Ill. 2d 90, 97, 514 N.E.2d 180, 183 (1987). In Foreman, our supreme 

court also explained how mandamus was not intended to “correct, direct[,] or control the action 

of a judge in any matter which he has jurisdiction to decide.” (Internal quotation marks 

omitted.) Id. at 96.

¶ 24 Plaintiff sought relief from the Livingston County circuit court as if his conviction had 

already been determined to be void—which it had not. As we noted above, his conviction was 

affirmed in 2009 (Oliver, No. 1-04-3078), the dismissal of his petition for postconviction relief 

was affirmed in 2012 (Oliver, 2012 IL App (1st) 102531), and his section 2-1401 petition for 

relief from judgment was either still pending or had been dismissed by the time he filed for 

mandamus relief. Thus, no court has determined his conviction to be void.

¶ 25 Our supreme court has made it clear that a judgment is void for purposes of mandamus

only if the court lacked the power to enter the order due to an absence of personal or subject 

matter jurisdiction or the judgment is based on a facially unconstitutional statute that is void 

ab initio. In re N.G., 2018 IL 121939, ¶ 18, 115 N.E.3d 102. Clearly, plaintiff is unable to 

allege the existence of a void judgment. As a result, plaintiff’s complaint for mandamus was 

properly dismissed by the circuit court pursuant to section 2-615 of the Code for failing to state 

a claim upon which relief could be granted.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated, we affirm the circuit court’s judgment.

¶ 28 Affirmed.

¶ 29 JUSTICE DeARMOND, specially concurring:

¶ 30 Although I agree plaintiff’s complaint was properly dismissed by the Livingston County 

circuit court and agree with almost everything else in the majority’s order, we differ in the 

mechanism by which dismissal occurred. As the trial court noted, plaintiff clearly failed to 

state a proper cause of action for mandamus, so the section 2-615 motion was proper. However, 

the trial court also questioned whether it had jurisdiction to consider plaintiff’s request for 

mandamus relief against another circuit court. Noting this was not the basis for dismissal, the 

majority does not believe the facts of this case “necessarily present an issue of jurisdiction.” 

Supra ¶ 15. 

¶ 31 We differ only in our understanding of all that the term “jurisdiction” may entail. As a 

result, I read the line of cases cited in the majority order and am here to say a circuit court does 

not have “jurisdiction,” i.e., the power or authority to act under circumstances such as this. I 

think these cases stand alongside McCormick to portray a full view of a circuit court’s power 

to address and redress controversies. The majority acknowledges “a circuit court judge may 

not properly review or direct the actions of another circuit court judge” but does not believe it 

to be a matter of a court’s jurisdiction. Supra ¶ 15. I see no alternative.

¶ 32 Though not using the word “jurisdiction,” the Illinois Supreme Court has said, “[o]ne 

circuit judge may not review or disregard the orders of another circuit judge in the judicial 

system of this State.” People ex rel. Phillips Petroleum Co. v. Gitchoff, 65 Ill. 2d 249, 257, 357 

N.E.2d 534, 538 (1976) (citing People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein, 61 Ill. 2d 
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229, 231, 335 N.E.2d 430, 431 (1974)). The supreme court’s use of the word “may” should 

not lead one to think this is a discretionary or advisory rule that goes to justiciability or what a 

court “should” do, à la comity. In older cases, the court spoke in stronger terms of what courts 

“cannot” do—i.e., limitations to the court’s power. See, e.g., Mathias v. Mathias, 202 Ill. 125, 

128-29, 66 N.E. 1042, 1043-44 (1903) (“[N]o judge *** has power to revise or review a 

judgment or decree entered by the court of which he is not a member, or by any other circuit 

court in the State. *** One court cannot review the decree of another court, even though both 

courts have concurrent original jurisdiction.” (Emphases added.)). 

¶ 33 The Mathias case is particularly instructive, in my view, even though it discusses general 

rules within the specific factual context of a divorce matter. In a nutshell, the husband filed a 

bill of review in the Cook County superior court, requesting that court review the judgment 

issued in the wife’s favor by the Cook County circuit court. The “superior court ruled that it 

possessed jurisdiction and proceeded to” the merits, eventually reversing the circuit court’s 

judgment. Mathias, 202 Ill. at 127. The appellate court ruled the superior court lacked 

jurisdiction, and the supreme court affirmed. Mathias, 202 Ill. at 127. In reversing the superior 

court, both reviewing courts discussed jurisdiction, or the court’s power. The supreme court 

concluded, “[t]he superior court of Cook county was without jurisdiction to entertain a bill to 

review and reverse a decree which had been entered in the circuit court of that county.” 

(Emphasis added.) Mathias, 202 Ill. at 127. The court explained that when presented with a 

matter requiring it to review another trial court’s judgment, the court must look beyond surfacelevel subject matter jurisdiction: “Whether the jurisdiction of the two courts is in every respect 

the same need not be here considered, for different courts, though having the power to exercise 

the like original jurisdiction, do not possess power to revise and review the judgments and 

decrees of each other.” (Emphasis added.) Mathias, 202 Ill. at 127. The appellate court’s 

opinion used even stronger language than the supreme court used. Consider the following:

“Courts of concurrent jurisdiction can not set aside or modify the orders and decrees of 

other courts of like jurisdiction. [Citation.] Any other supposition is a legal absurdity. 

[Citation.] 

‘A review and reversal by one court of the judgment of another co-ordinate court, 

would be a marvel in the law. Under such a practice the parties could go on reviewing 

to the end of time.’ [Citation.]” (Emphasis added.) Mathias v. Mathias, 104 Ill. App. 

344, 346-47 (1902), aff’d, 202 Ill. 125 (1903). 

¶ 34 Why do circuit courts lack revisory power over sister courts? Because supervisory power 

rests with the Illinois Supreme Court alone. As that court said: “Section 16 of article VI of the 

1970 Constitution vests ‘General administrative and supervisory authority over all courts’ of 

this State in this court. In the exercise of that authority we have heretofore ordered the 

correction of patently erroneous action by trial judges.” Phillips Petroleum, 65 Ill. 2d at 257. 

¶ 35 The supreme court has administrative and supervisory authority over Illinois circuit courts. 

They are the only court invested with the power to order a trial court to perform a ministerial 

act that might be the subject of a mandamus action. Trial courts cannot bind other trial courts 

because they do not have “jurisdiction” in matters like these, and this principle has been applied 

in several cases.

¶ 36 In Board of Trustees of Community College District No. 508 v. Rosewell, 262 Ill. App. 3d 

938, 635 N.E.2d 413 (1992), this court addressed the propriety of one trial court judge 

reviewing, modifying, or countermanding the judgments or decrees entered by other trial court 
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judges in completely separate and distinct lawsuits. Recognizing each circuit court has equal 

and concurrent subject matter jurisdiction as constitutional courts of general jurisdiction, it 

noted:

“[T]his equality of power and authority among the divisions and judges does not 

provide a license for one judge to ignore orders entered by judges of coordinate 

authority whether they are in different divisions or different counties. The supreme 

court has asserted as a general principle that ‘[o]ne circuit judge may not review or 

disregard the orders of another circuit judge in the judicial system of this State.’ ” 

Board of Trustees, 262 Ill. App. 3d at 957 (quoting Phillips Petroleum, 65 Ill. 2d at 

257).

¶ 37 In People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary 

District, 54 Ill. 2d 442, 298 N.E.2d 177 (1973), our supreme court entered writs of mandamus

and prohibition against the circuit court of one county for essentially the same thing plaintiff 

seeks here, i.e., for the court of one county to accept jurisdiction and issue orders conflicting 

with those of a circuit court of another county in which the same relief was sought by the same 

parties. When it did so, the supreme court found: “[T]he Madison County court’s *** 

acceptance of jurisdiction and issuance of orders conflicting with those of the St. Clair County 

court was not only clearly erroneous, but that such action can only serve to diminish public 

respect for the judicial system of this State.” (Emphasis added.) East Side Levee, 54 Ill. 2d at 

445.

¶ 38 Plaintiff cannot obtain an extraordinary writ of mandamus from a Livingston County 

circuit court directing a Cook County circuit court to order the relief requested. The reason, 

however, in my opinion, is because the court has no “power” to do so. It is not a question of 

whether a court should decline or refuse to hear such matters; the supreme court has made it 

clear it cannot. 

¶ 39 In Malone v. Cosentino, 99 Ill. 2d 29, 457 N.E.2d 395 (1983), in an effort to explain the 

degree to which this prohibition extends, the supreme court noted, once a court of competent 

jurisdiction (in this case Cook County) entered a judgment, 

“ ‘no matter how erroneous it may be, or even absurd—though it be made in palpable 

violation of the law itself, and manifestly against the evidence—[it] is, nevertheless, 

binding upon all whom the law says shall be bound by it *** until it is reversed in a 

regular proceeding ***. ***’ [Citation.] Once a court with proper jurisdiction has 

entered a final judgment, that judgment can only be attacked on direct appeal, or in one 

of the traditional collateral proceedings ***.” Malone, 99 Ill. 2d at 32-33. 

This, to me, is the equivalent of saying the court has no “jurisdiction” to review another circuit 

court’s order, no matter how erroneous that order may be. 

¶ 40 By way of another practical example from Malone, the Board of Trustees court pointed out 

how the filing of a class action seeking to enjoin the collection of traffic fines assessed against 

the plaintiff in traffic court rather than an appeal was “jurisdictionally barred as an 

impermissible collateral attack.” Board of Trustees, 262 Ill. App. 3d at 961. No one would 

argue the circuit court did not have “subject matter jurisdiction” over a class action challenging 

the constitutionality of certain traffic fines in general, but it did not have it in this instance since 

it was an impermissible collateral attack. I find it difficult to distinguish that from our situation 

here. No one contends the Livingston County circuit court does not have the ability to hear 

petitions for writs of mandamus in general. It has subject matter jurisdiction over such 
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proceedings. It does not, however, have jurisdiction if one of the parties is a sister circuit court 

because it lacks authority to review another circuit court’s judgments and cannot bind another 

court’s conduct.

¶ 41 I am fully cognizant of the language of the supreme court in McCormick, describing 

jurisdiction to be composed of both “subject matter” and “personal.” Nevertheless, as 

evidenced by the cases cited supra, “jurisdiction” as a concept is more than simply “subject 

matter” and “personal jurisdiction.” Indeed, these are the means by which a court either obtains 

or loses the power to act. This present case, for example, requires a more expansive description 

of jurisdiction because it involves one circuit court reviewing the order of another and 

potentially ordering that court to act—something the supreme court has made clear no circuit 

court has the power to do. 

¶ 42 As an aside, even if I found McCormick’s explanation for jurisdiction wholly adequate, I 

question whether it controls here. McCormick rightly ties subject matter jurisdiction to 

justiciability. See McCormick v. Robertson, 2015 IL 118230, ¶ 20 (“So long as a matter 

brought before the circuit court is justiciable and does not fall within the original and exclusive 

jurisdiction of our court, the circuit court has subject matter jurisdiction to consider it.”). 

Frankly, given the above case law, I doubt petitioner presented the Livingston County circuit 

court with a justiciable matter because justiciability requires “a controversy appropriate for 

review by the court.” (Emphasis added.) Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., 

Inc., 199 Ill. 2d 325, 335, 770 N.E.2d 177, 184 (2002). Along with other factors, a controversy 

is appropriate for review when a court can issue “specific relief through a decree of a 

conclusive character.” (Internal quotation marks omitted.) Exchange National Bank of Chicago 

v. County of Cook, 6 Ill. 2d 419, 422, 129 N.E.2d 1, 3 (1955). I understand this to mean a court 

cannot address a matter unless it can also provide the parties redress. Nothing from Mathias, 

Philips Petroleum, East Side Levee, or Board of Trustees tells us this mandamus action is 

appropriate for review by the Livingston County circuit court because these cases explain a 

circuit court cannot grant a party specific relief (or redress) against another circuit court. 

Accordingly, I doubt mandamus actions like this one are justiciable, which, in turn, necessarily 

calls into question jurisdiction. 

¶ 43 Whatever the conceptual reason for that lack of authority (subject matter jurisdiction, 

justiciability, personal jurisdiction, supervisory authority, comity, or efficient administration 

of justice), once the Cook County court had jurisdiction of defendant’s section 2-1401 petition, 

the Livingston County court could not properly accept jurisdiction to consider ordering the 

Cook County court to grant defendant’s petition or to enter a finding in opposition to the court’s 

denial. That is the context in which I use the term “jurisdiction.” 

¶ 44 If we decide the case only on the section 2-615 motion, we are ignoring the fact that the 

Livingston County circuit court has no authority to order the Cook County circuit court to do 

anything regarding defendant’s mandamus claim. What’s more, we are ignoring the fact that 

jurisdiction is always a threshold issue, and if the Livingston County circuit court lacked 

jurisdiction, it did not have the power to dismiss the matter pursuant to section 2-615; it could 

only dismiss under section 2-619. See Ryburn v. People, 349 Ill. App. 3d 990, 993, 811 N.E.2d 

1209, 1212 (2004) (“ ‘[L]ogic compel[s] initial consideration of the issue of jurisdiction over 

the defendant—a court without such jurisdiction lacks power to dismiss a complaint for failure 

to state a claim.’ ” (quoting Arrowsmith v. United Press International, 320 F.2d 219, 221 (2d 

Cir. 1963))).
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¶ 45 It is for these reasons I specially concur.