Mejia v. Clerk of Court , 863 N.Y.S.2d 375 ( 2008 )

Proceeding pursuant to CELR article 78 in the nature of mandamus to compel the respondents to refund, to the petitioner, money he posted for bail in connection with a criminal action entitled People v Mejia, commenced in the Criminal Court, Queens County, under docket No. 2006 QN 01446, and application for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CELR 8022 (b) is waived, and the application is otherwise denied; and it is further,

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 a judge of a county court or the court of general sessions” was named as a respondent (CELR 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]). Fisher, J.E, Balkin, McCarthy and Chambers, JJ., concur.