Matter of Whitnum v. Plastic & Reconstructive Surgery, P.C.

122 A.D.3d 870, 995 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2014
• Docket: 2014-08654
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus, in effect, to compel Francesca Connolly, a Justice of the Supreme Court, Westchester County, to determine certain pending motions in an action entitled Whitnum v Plastic & Reconstructive Surgery, P.C., pending in the Supreme Court, Westchester County, under index No. 19222/09, 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 as academic; and it is further,

Adjudged that the proceeding is dismissed, without costs or disbursements. The petitioner failed to properly serve a necessary party, Supreme Court Justice Francesca Connolly. Accordingly, this proceeding must be dismissed (see CPLR 7804 [i]; Matter of Breytman v Lewis, 101 AD3d 866 [2012]; Matter of Bell v State Univ. of N.Y. at Stony Brook, 185 AD2d 925 [1992]; Matter of Kelly v Scully, 152 AD2d 698 [1989]).

Skelos, J.E, Dickerson, Chambers and Maltese, JJ., concur.