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Binkley v. O'Connor

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 27, 2009

IN THE MATTER OF DAVID BINKLEY, PETITIONER,
v.
MAUREEN O'CONNOR, RESPONDENT.

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Maureen O'Connor, an Assistant District Attorney in the office of Robert M. Morgenthau, District Attorney, New York County, to produce, among other documents, copies of an arrest warrant and search warrants in connection with an action entitled People v Binkley in the Supreme Court, New York County, under Indictment Nos. 10210/95 and 165/98. Application by the petitioner to prosecute this proceeding as a poor person.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., FRED T. SANTUCCI, EDWARD D. CARNI and THOMAS A. DICKERSON, JJ.

DECISION, ORDER & JUDGMENT

ORDERED that the application to prosecute this proceeding as a poor person 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 petition is denied and the proceeding is dismissed, without costs or disbursements.

This Court does not have original subject matter jurisdiction to entertain this proceeding, as no "justice of the supreme court or . . . judge of the county court or the court of general sessions" was named as a respondent (CPLR 506[b][1]). Since subject matter jurisdiction cannot be waived, the proceeding must be dismissed (see Matter of Nolan v Lungen, 61 NY2d 788; Matter of Hamilton v Brown, 54 AD3d 760; CPLR 7804[b]; cf. Matter of Law Offs. of Andrew F. Capoccia v Spitzer, 270 AD2d 643, 644 n 2).

RIVERA, J.P., SANTUCCI, CARNI and DICKERSON, JJ., concur.

20090127

© 1992-2009 VersusLaw Inc.



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