Gill v. Portuando

Appellate Division of the Supreme Court of New York

Gill v. Portuando

234 A.D.2d 547, 651 N.Y.S.2d 920, 1996 N.Y. App. Div. LEXIS 13272

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1996

StatusPublished

This text of 234 A.D.2d 547 (Gill v. Portuando) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gill v. Portuando, 234 A.D.2d 547, 651 N.Y.S.2d 920, 1996 N.Y. App. Div. LEXIS 13272 (N.Y. Ct. App. 1996).

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Opinion

—In a proceeding pursuant to CPLR article 78 to review determinations of the respondents dated March 14, 1995, which, after hearings, found the petitioner guilty of having more reading materials in his cell than permitted, verbal harassment, refusing a direct order, bringing contraband into the Special Housing Unit, and unauthorized movement, the petitioner appeals (1) from a judgment of the Supreme Court, Dutchess County (Bernhard, J.), dated June 19, 1995, which dismissed the proceeding, and (2), as limited by his brief, from so much of an order of the same court dated July 31, 1995, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the judgment is dismissed, without costs or disbursements, as that judgment was superseded by the order dated July 31, 1995, made upon reargument; and is further,

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Although the Supreme Court decided this matter on the merits, the proceeding should have been dismissed on jurisdictional grounds because the petitioner failed to serve his papers on the Attorney-General as required under CPLR 2214 (d) (see, De Carlo v De Carlo, 110 AD2d 806). In any event, we note that the record is not sufficient to determine the appeal on the merits. Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to review determinations of the respondents dated March 14, 1995, which, after hearings, found the petitioner guilty of having more reading materials in his cell than permitted, verbal harassment, refusing a direct order, bringing contraband into the Special Housing Unit, and unauthorized movement, the petitioner appeals (1) from a judgment of the Supreme Court, Dutchess County (Bernhard, J.), dated June 19, 1995, which dismissed the proceeding, and (2), as limited by his brief, from so much of an order of the same court dated July 31, 1995, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the judgment is dismissed, without costs or disbursements, as that judgment was superseded by the order dated July 31, 1995, made upon reargument; and is further,

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Although the Supreme Court decided this matter on the merits, the proceeding should have been dismissed on jurisdictional grounds because the petitioner failed to serve his papers on the Attorney-General as required under CPLR 2214 (d) (see, De Carlo v De Carlo, 110 AD2d 806). In any event, we note that the record is not sufficient to determine the appeal on the merits. Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.

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Bluebook (online)

234 A.D.2d 547, 651 N.Y.S.2d 920, 1996 N.Y. App. Div. LEXIS 13272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gill-v-portuando-nyappdiv-1996.

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