Opinion
2003-04229
Submitted June 12, 2003.
July 14, 2003.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the retrial of the petitioners in an underlying criminal action entitled People v. Majestic Collectibles, Inc., pending in the County Court, Suffolk County, under Indictment No. 1112-2001, on the ground that retrial would violate their right not to twice be placed in jeopardy for the same offense.
Robert J. Del Col, Huntington, N.Y., for petitioners.
Eliot Spitzer, Attorney-General, New York, N.Y. (Robin A. Forshaw and Melanie Jenkins of counsel), respondent pro se.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, REINALDO E. RIVERA, JJ.
DECISION JUDGMENT
ADJUDGED that 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 N.Y.2d 788; CPLR 7804[b], cf. Matter of Law Offs. of Andrew F. Capoccia v. Spitzer, 270 A.D.2d 643, 644 n 2).
FEUERSTEIN, J.P., KRAUSMAN, GOLDSTEIN and RIVERA, JJ., concur.