Cass v. County of Suffolk

Appellate Division of the Supreme Court of New York

Cass v. County of Suffolk

272 A.D.2d 471, 708 N.Y.S.2d 326, 2000 N.Y. App. Div. LEXIS 5573

Appellate Division of the Supreme Court of the State of New York·Decided May 15, 2000·Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the director of the Suffolk County Executive Office of Consumer Affairs, dated November 18, 1997, which, after a hearing, inter alia, revoked the petitioner’s home appliance repair license, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered June 1, 1999, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly dismissed this proceeding because it was not properly commenced (see, CPLR 304, 403 [b]; 7804 [c]). The petitioner’s failure to include the petition in the original filing was a fatal jurisdictional defect that could not be cured by the subsequent filing of a notice of petition and petition without also purchasing a new index number (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714, 717; Matter of Gershel v Porr, 89 NY2d 327, 332; Matter of Vetrone v Mackin, 216 AD2d 839, 841). Thompson, J. P., Friedmann, Florio and Smith, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to review a determination of the director of the Suffolk County Executive Office of Consumer Affairs, dated November 18, 1997, which, after a hearing, inter alia, revoked the petitioner’s home appliance repair license, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered June 1, 1999, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly dismissed this proceeding because it was not properly commenced (see, CPLR 304, 403 [b]; 7804 [c]). The petitioner’s failure to include the petition in the original filing was a fatal jurisdictional defect that could not be cured by the subsequent filing of a notice of petition and petition without also purchasing a new index number (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714, 717; Matter of Gershel v Porr, 89 NY2d 327, 332; Matter of Vetrone v Mackin, 216 AD2d 839, 841). Thompson, J. P., Friedmann, Florio and Smith, JJ., concur.

Cass v. County of Suffolk, 272 A.D.2d 471, 708 N.Y.S.2d 326, 2000 N.Y. App. Div. LEXIS 5573 (N.Y. Ct. App. 2000).

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