[*1]
Shamooli v Mecanik
2011 NY Slip Op 51089(U) [31 Misc 3d 1242(A)]
Decided on June 17, 2011
District Court Of Nassau County, First District
Fairgrieve, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 17, 2011
District Court of Nassau County, First District


David Shamooli, Petitioner(s)

against

Jaklin Mecanik, "JOHN DOE" and "JANE DOE,", Respondent(s)




LT-007343-10



Novick, Edelstein, Lubell, Reisman, Leventhal & Wasserman, Attorneys for Petitioners, 733 Yonkers Avenue, Yonkers, New York 10704, 914-375-0100; Jonathan E. Kroll & Associates, PLLC, Attorneys for Respondent, 400 Garden City Plaza, Garden City, New York 11530, 516-873-8000

Scott Fairgrieve, J.



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). [*2]

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:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 17, 2011