Heins v. Suffolk County Department of Civil Service

248 A.D.2d 537, 669 N.Y.S.2d 904, 1998 N.Y. App. Div. LEXIS 2624

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1998
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Alan Schneider, Suffolk County Personnel Officer, dated May 24, 1996, to remove the petitioner’s name from the preferred list for the position of police officer in the Town of Southold, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Underwood, J.), dated February 13, 1997, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with one bill of costs.

On August 9, 1995, the petitioner filed a notice of petition and verified petition in the office of the Clerk of Suffolk County. The sole respondent originally named therein was the Suffolk County Department of Civil Service. That proceeding was assigned Suffolk County Index Number 95-19074, and was terminated by a judgment of the Supreme Court, Suffolk County (Underwood, J.), dated March 27, 1996.

The petitioner claims that he subsequently commenced the present proceeding by filing a notice of petition and petition in the office of the Clerk of the Supreme Court, Suffolk County, on September 24 and/or September 25, 1996. However, at the time of the filing of the present petition, he again used Suffolk County Index Number 95-19074, and he affixed that index number to the notice of petition and petition served on the respondents.

In October 1996 the respondents Suffolk County Department of Civil Service and Alan Schneider, and the Town of Southold separately moved to dismiss this proceeding pursuant to CPLR 7804 (f), on the ground that it has not been properly commenced in accordance with CPLR 304. In November 1996 the petitioner belatedly purchased a new index number. The Supreme Court dismissed the proceeding. We affirm.

The petitioner’s failure to purchase a new index number prior to service of the notice of petition and petition herein requires dismissal of the present proceeding (see, CPLR 304, 306-a; Matter of Gershel v Porr, 89 NY2d 327, affg 226 AD2d 636; Midamerica Fed. Sav. Bank v Gaon, 242 AD2d 610; Mandel v Waltco Truck Equip. Co., 243 AD2d 542; Oquendo v Rios, 240 AD2d 552; Venditti v Town of Alden, 239 AD2d 910; Matter of Pal v Aponte, 237 AD2d 443).

Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.