Opinion
2003-03262, 2003-08758.
Decided May 17, 2004.
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.
Ahmuty, Demers McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellant.
Grace Grace, Yorktown Heights, N.Y. (William J. Grace of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the appeal from the order entered March 10, 2003, is dismissed, as that order was superseded by the order entered May 22, 2003, made upon renewal and reargument; and it is further,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 N.Y.2d 745; Matter of Spodek v. New York State Commr. of Taxation Fin., 85 N.Y.2d 760, 763). 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 A.D.3d 422; Matter of Parkinson v. Leahy, 277 A.D.2d 810; Matter of Montecalvo v. Columbia County, 274 A.D.2d 868). 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 A.D.2d 769).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.