Opinion
July 6, 1998
Appeal from the Supreme Court, Westchester County (Shapiro, J.).
Ordered that the appeal is dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is vacated; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
A CPLR article 78 proceeding naming a Supreme Court Justice as a respondent must be commenced in the Appellate Division ( see, CPLR 7804 [b]; 506 [b] [1]; Matter of Nolan v. Lungen, 61 N.Y.2d 788; Matter of Baba v. Evans, 213 A.D.2d 248, cert denied sub nom. Baba v. 1133 Bldg. Corp., 520 U.S. 1254). Therefore, the Supreme Court lacked subject matter jurisdiction over the proceeding ( see, Matter of Nolan v. Lungen, supra).
Further, while we consider the instant appeal by the petitioner as if it were an original application to this Court ( see, Matter of Schnell v. Spano, 120 A.D.2d 669), we nevertheless find that the proceeding must be dismissed on the merits. The People satisfactorily demonstrated (1) the existence of probable cause to believe that the petitioner committed the crime under investigation, (2) a clear indication that relevant material evidence will be found, and (3) that the method used to secure that evidence is safe and reliable ( see, Matter of Abe A., 56 N.Y.2d 288; Matter of Vivanco v. West, 214 A.D.2d 618; Matter of Anonymous v. Cacciabaudo, 153 A.D.2d 856).
Thompson, J. P., Santucci, Friedmann and Krausman, JJ., concur.