One Beacon Insurance v. Daly

7 A.D.3d 717, 776 N.Y.S.2d 829, 2004 N.Y. App. Div. LEXIS 6984

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 2004
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals (1) from an order of the Supreme Court, Westchester County (Nastasi, J.), entered March 10, 2003, which denied the petition and dismissed the proceeding for failure to comply with CPLR 304 and 306, and (2), as limited by its brief, from so much of an order of the same court entered May 22, 2003, as upon renewal and reargument, adhered to its prior determination.

Ordered that the appeal from the order entered March 10, 2003, is dismissed, as that order was superseded by the order entered May 22, 2003, made upon renewal and reargument; and it is further,

Ordered that the order entered May 22, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondent.

A special proceeding is commenced by delivering a notice of petition and petition to the clerk of the court in the county in which the special proceeding is brought, together with any filing fee (see CPLR 304; Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745 [2002]; Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760, 763 [1995]). The failure to file the initial papers necessary to institute a proceeding constitutes a nonwaivable jurisdictional defect rendering the proceeding a nullity (see Matter of Allstate Indem. Co. v Martinez, 4 AD3d 422 [2004]; Matter of Parkinson v Leahy, 277 AD2d 810 [2000]; Matter of Montecalvo v Columbia County, 274 AD2d 868 [2000]). Upon renewal and reargument, the petitioner’s proof was insufficient to establish that the notice of petition and petition had been filed with the Westchester County Clerk. Accordingly, upon renewal and reargument, the Supreme Court properly adhered to its prior determination denying the petition and dismissing the proceeding (see Sangiacomo v County of Albany, 302 AD2d 769 [2003]). Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.