Opinion
2003-05614.
Decided February 9, 2004.
In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Nastasi, J.), entered June 4, 2003, which, sua sponte, denied the petition and dismissed the proceeding for failure to comply with CPLR 304 and 306.
Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order and judgment is affirmed, without costs or disbursements.
Under New York's commencement-by-filing system, in order to commence a special proceeding, the petition must be filed with the Clerk of the court and the filing fee paid ( see CPLR 304; Matter of Mendon Ponds Neighborhood Assn. v. Dehm, 98 N.Y.2d 745; Matter of Parkinson v. Leahy, 277 A.D.2d 810; Matter of Montecalvo v. Columbia County, 274 A.D.2d 868). "When service of process is made without filing, the resulting proceeding is a nullity, it not having been properly commenced, and such nonfiling constitutes a nonwaivable jurisdictional defect" ( Matter of Parkinson v. Leahy, supra at 811; see Matter of Gershel v. Porr, 89 N.Y.2d 327). In this case, despite being given an opportunity to do so by the Supreme Court, the petitioner did not demonstrate that the petition to stay arbitration had been filed with the Westchester County Clerk. Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding ( see Sangiacomo v. County of Albany, 302 A.D.2d 769).
ALTMAN, J.P., S. MILLER, ADAMS and MASTRO, JJ., concur.