Opinion
CA 02-01930
February 7, 2003.
Appeal from an order of Supreme Court, Erie County (Michalek, J.), entered December 21, 2001, which, inter alia, denied respondent's cross motion to dismiss the petition.
WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (JOSEPH R. BERGEN OF COUNSEL), FOR RESPONDENT-APPELLANT.
O'SHEA, REYNOLDS CUMMINGS, BUFFALO (MICHELLE PARKER OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is granted and the petition is dismissed.
Memorandum:
Petitioner commenced this proceeding pursuant to CPLR article 75 seeking a stay of arbitration. Supreme Court erred in denying respondent's cross motion to dismiss the petition. Petitioner's failure to specify a return date in the notice of petition as required by CPLR 403(a) constitutes a jurisdictional defect that requires dismissal of this proceeding (see Matter of Figaro v. New York State Local Retirement Sys., 203 A.D.2d 678, lv denied 84 N.Y.2d 801). In any event, respondent also is entitled to dismissal because petitioner's service of the notice of petition and petition by ordinary mail constitutes a further jurisdictional defect (see 7503 [c]; Rodriguez v. Allstate Ins. Co., 180 Misc.2d 969, 972-973).