IN RE APPL. OF STATE DIV OF HUMAN RIGHTS v. BERLER

Full title: IN THE MATTER OF THE APPLICATION OF STATE DIVISION OF HUMAN RIGHTS…

Court: Supreme Court of the State of New York, Suffolk County

Date published: Mar 17, 2005

2005 N.Y. Slip Op. 30125 (N.Y. Sup. Ct. 2005)

Opinion

0026288/2004.

March 17, 2005.

GINA M. LOPEZ SUMMA, General Counsel, Attorney for Petitioner, By: Michael K. Swirsky, Esq., Bronx, New York.

Hon. Howard Berler, Justice of the Supreme Court, Supreme Court, State of New York, County of Suffolk, Central Islip, New York.

NORTH SHORE INTERNAL MEDICINE ASSOCIATES, INC., Respondent, c/o State of New York, Albany, New York.

FRANK ASSOCIATES, Attorneys for Respondent, North Shore Internal Medicine, Associates, Inc., By: Saul D. Zabell, Esq. Farmingdale, New York.

ROOKMATIE PERSAUD, Respondent, Dix Hills, New York.

DOUGLAS L. THOMAS, ESQ., Attorney for Respondent, Rookmatie Persaud, Hempstead, New York.

STATE OF NEW YORK DEPARTMENT OF LAW, Suffolk Regional Office, Hauppauge, New York.

MARY M. WERNER, Judge.Page 2

Upon the following papers read on this petition; Notice of Petition and Supporting Papers 1-16 and Exhibits A-K; Notice of Cross-Motion and Supporting Papers 17-27; Answering Affidavits 28-40; it is

ORDERED that upon this petition (seq# 001) for a judgment pursuant to Article 78 annulling the order of the Supreme Court of the State of New York, County of Suffolk (Berler, J.) dated July 9, 2004, the cross-motion (seq #002) for an order dismissing the petition for lack of jurisdiction is granted and the petition is dismissed.

In this action petitioner State Division of Human Rights challenges the authority of Justice Howard Berler to issue an order precluding respondent, Rookmatie Persaud, from offering into evidence in a hearing before petitioner, State Division of Human Rights, documents previously subpoenaed by co-respondent North Shore Internal Medicine, Inc.

A proceeding against a Justice of the Supreme Court must be commenced in the Appellate Division. CPLR § 506 (b) (1). Therefore petitioner has improperly commenced this proceeding in this Court. This is a non-waiveable jurisdictional defect mandating dismissal of the petition.Matter of Hassig v. Nicandri, 2 A.D.3d 1118, 768 N.Y.S.2d 691 (3^rd Dep't, 2003); Matter of Santorelli v. District Attorney of Westchester County, 252 A.D.2d 504; 676 N.Y.S.2d 494 (2^nd Dep't, 1998).