Matter of White v People of State of N.Y.

Matter of White v People 2007 NY Slip Op 05751 [41 AD3d 860] June 26, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

In the Matter of Gregory White, Petitioner,
v
People of State of New York et al., Respondents.

—[*1] Gregory White, Fishkill, N.Y., petitioner pro se.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael J. Keane of counsel), for respondents.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to bar the People from relitigating certain matters previously determined in a proceeding in the Supreme Court, Kings County, entitled People v White under indictment No. 3821/06, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,

Adjudged that the proceeding is dismissed, without costs or disbursements.

This Court does not have original subject matter jurisdiction to entertain this proceeding, as no "justice of the supreme court or . . . judge of [the] county court or the court of general sessions" was named as a respondent (CPLR 506 [b] [1]). Since subject matter jurisdiction cannot be waived, the proceeding must be dismissed (see Matter of Nolan v Lungen, 61 NY2d 788 [1984]; CPLR 7804 [b]; cf. Matter of Law Offs. of Andrew F. Capoccia v Spitzer, 270 AD2d 643, 644 n 2 [2000]) Florio, J.P., Fisher, Carni and McCarthy, JJ., concur.