Opinion
LT-007343-10.
Decided June 17, 2011.
Novick, Edelstein, Lubell, Reisman, Leventhal Wasserman, Attorneys for Petitioners, Yonkers, New York.
Jonathan E. Kroll Associates, PLLC, Attorneys for Respondent, Garden City, New York.
Petitioner commences this holdover proceeding seeking a judgment of possession; the issuance of a warrant of eviction, and a judgment for the fair value of use and occupancy.
Respondent now moves for an order dismissing the action, pursuant to CPLR 3211, UDCA § 1002, RPAPL § 731, and RPAPL § 733. The petitioner opposes this motion and the respondent has filed a reply.
A special proceeding is commenced by a notice of petition and a petition. The notice of petition may be issued by an attorney, judge, or court clerk, but not by a party, RPAPL 731(1). The person signing the notice of petition is the one who "issues" it. Grove Street Realty, Inc. v. Testa, Misc 2d 278, 418 NYS 2d 858 (Peekskill City Civ Ct 1979).
The notice of petition in this action has been issued by the respondent, David Shamooli. Said line for the Clerk's designation remains blank. It was not "issued" by either the clerk, judge, or attorney. Therefore, the notice of petition dated December 13, 2010 is not in conformity with subdivision one of RPAPL 731. Hence, it is jurisdictionally defective. See NY PRAC — LT Section 15:210.
The respondent's motion to dismiss the petition upon the ground that the notice of petition is defective is granted. The petitioner is dismissed.
In light of the dismissal of the petition, the court will not address the other issues raised by the respondent's papers.
So Ordered: