The opinion
Proceeding pursuant *664 to CPLR article 78 in the nature of prohibition to enjoin the respondent Evelyn Braun, a Justice of the Supreme Court, from enforcing an order of the Supreme Court, Queens County, dated March 28, 1996, which granted the motion of the defendant in a criminal action entitled People v Davis under Indictment No. 436/94, for a trial order of dismissal and thereupon dismissed the indictment.
Motion by the respondent to dismiss the proceeding.
Upon the petition and the papers filed in support of the proceeding, and the papers filed in opposition thereto and in support of the motion, it is
Ordered that the motion is granted; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
The failure to name the defendant in the underlying criminal action as a party requires the dismissal of the instant proceeding under the circumstances of this case (see, CPLR 7802 [c]). Bracken, J. P., Rosenblatt, Miller, Ritter and Copertino, JJ., concur.