Estate of Weinraub v. Gabel

Margaret M. J. Mangan, J.

This is a motion pursuant to article 78 of the Civil Practice Act for an order reviewing, vacating and annulling a determination of respondent, City Rent and Rehabilitation Administrator, and cross motion by respondent to dismiss the petition.

Petitioner herein commenced the instant proceeding by notice of motion accompanied by several affidavits. No petition was served or annexed to the moving papers. Respondent seeks dismissal on the ground that failure to proceed by way of verified petition in accordance with section 7804 of the Civil Practice Law and Rules, renders the application fatally defective. Petitioner’s attorney contends that his affidavit serves the necessary purpose of the petition and contains a plain and concise statement of the material facts relied upon. The alleged petition herein is defective for two reasons: the first is that subdivision (d) of section 7804 specifically states: “ There shall be a verified petition, which shall comply with the rules for a complaint in an action” (italics supplied). Certainly, an attorney’s affidavit cannot be said to be equivalent to a verified complaint in an action. Secondly, if as the attorney for petitioner contends, his affidavit, while not labeled “ petition ” is in fact the petition, it is equally defective since the attorney is not the real party in interest and not a party aggrieved. (Matter of Zelter v. Nash, 285 App. Div. 1214; Matter of Londin v. Herman, N. Y. L. J., Feb. 3, 1961, p. 16, col. 2 [Supreme Ct., Bronx County, Spectob, J.]). Accordingly, respondent’s cross motion to dismiss the petition is granted. Petitioner’s motion is denied and the application dismissed. This disposition is without prejudice to a proper motion by petitioner for the relief sought within 10 days after service of a copy of this order with notice of entry thereof.