Hamilton v. Brown , 862 N.Y.S.2d 917 ( 2008 )

Froceeding pursuant to CFLR article 78 in the nature of mandamus, inter alia, to compel the respondent William Harrington, a Judge of the Criminal Court of the City of New York, Queens County, to dismiss charges in a criminal proceeding entitled People v Hamilton pending in the Supreme Court, Queens County, under indictment No. 749/08. Application by the petitioner to prosecute this proceeding as a poor person.

Ordered that the application to prosecute this proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

Adjudged that the petition is denied and 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 a 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 NY2d 788 [1984]; CPLR 7804 [b]; cf. Matter of Law Offs. of Andrew F. Capoccia v Spitzer, 270 AD2d 643, 644 n 2 [2000]). Skelos, J.P., Covello, Eng and Chambers, JJ., concur.