Espinoza v. Berbary

288 A.D.2d 934, 732 N.Y.S.2d 199, 2001 N.Y. App. Div. LEXIS 10670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2001
• Status: Published

Opinion

—Judgment insofar as appealed from unanimously reversed on the law without costs and last decretal paragraph vacated. Memorandum: We agree with respondent that Supreme Court erred in ordering the Attorney General to file a notice of appeal on behalf of petitioner, who is acting pro se, in the event that petitioner wished to appeal from the judgment dismissing his CPLR article 78 petition. The court thereby created a conflict of interest for the Attorney General, who represents respondent (see generally, Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24], DR 7-101 [a] [3] [22 NYCRR 1200.32 (a) (3)]). The filing of a notice of appeal confers jurisdiction upon an appellate court (see, Matter of Gaines v Coughlin, 236 AD2d 648, 649; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5513:l, at 169) and thus cannot be deemed a ministerial act. (Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.) Present — Pigott, Jr., P. J., Wisner, Scudder, Burns and Gorski, JJ.