In the Matter of Majestic Collectibles, Inc., et al., Petitioners, v. Eliot Spitzer, as Attorney General of the State of New York, Respondent

In the Matter of Majestic Collectibles, Inc., et al., Petitioners, v Eliot Spitzer, as Attorney General of the State of New York, Respondent. [762 NYS2d 504] [MAJORITY] Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the retrial of the petitioners in an underlying criminal action entitled People v Majestic Collectibles, Inc., pending in the County Court, Suffolk County, under Indictment No. 1112-2001, on the ground that retrial would violate their right not to twice be placed in jeopardy for the same offense. 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 * * * judge of [the] county court or the court of general sessions” was named as a respondent (CPLR 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. Ca poccia v Spitzer, 270 AD2d 643, 644 n 2 [2000]). Feuerstein, J.P., Krausman, Goldstein and Rivera, JJ., concur.