In the Matter of Nick Gaudiuso et al., Doing Business as Nick and Tony's Hero Shop, Appellants, v. Roderick G. W. Chu et al., Constituting the New York State Tax Commission, Respondents

In the Matter of Nick Gaudiuso et al., Doing Business as Nick and Tony’s Hero Shop, Appellants, v Roderick G. W. Chu et al., Constituting the New York State Tax Commission, Respondents. [MAJORITY — — Casey, J.] — Casey, J. Appeal from a judgment of the Supreme Court (Klein, J.), entered August 24, 1987 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition. Following service of a notice of a petition and petition by petitioners, respondents moved to dismiss on objections in point of law based upon a number of defects in the petition. Supreme Court granted the motion and this appeal ensued. The petition is patently defective in that it is not the petition of the real parties in interest, is not verified and fails to allege compliance with Tax Law § 1138 (a) (4). The court has the power to cure or ignore various defects (see, CPLR 2001, 3026), but in view of petitioners’ failure to appear or otherwise respond to the motion to dismiss, we see no reason to disturb Supreme Court’s dismissal of the defective petition herein. Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.