Perdum v. Michael

193 A.D.2d 440, 597 N.Y.S.2d 326

Opinion

Order and judgment (one paper), Supreme Court, New York County (Bruce McM. Wright, J.), entered on or about May 6, 1992, granting respondent’s cross-motion to dismiss, unanimously affirmed, without costs.

We agree with the IAS Court that petitioner failed to comply with the service requirements of CPLR 403 (b) and 7804 (c). Although petitioner sought to commence this action by order to show cause rather than by notice of petition (CPLR 304), he still was required to serve the petition upon respondent along with the order to show cause (Matter of Long Is. Citizens Campaign v County of Nassau, 165 AD2d 52). His service upon counsel only was jurisdictionally defective. Further, we note that the proceeding, even if properly commenced, would have been time-barred (CPLR 217). Concur— Sullivan, J. P., Ellerin, Wallach, Rubin and Nardelli, JJ.