Harris v. New York State Board of Parole

7 A.D.2d 662, 179 N.Y.S.2d 378, 1958 N.Y. App. Div. LEXIS 4303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1958
• Status: Published

Opinion

Appeal by petitioner from an order of the Supreme Court at Special Term which dismissed the petition in a proceeding brought under article 78 of the Civil Practice Act to restrain the respondent Board of Parole from denying parole to petitioner. Petitioner sought to institute the proceeding by order to show cause. The Special Term, in- a memorandum decisión, found no basis for the relief sought and returned the proposed order unsigned. Subsequently an order dismissing the petition was entered. Although permissible, an order to show cause is not necessary to commence such a proceeding. (Civ. Prac. Act, § 1289). There appears in the papers no reason for resorting to an order to show cause rather than the usual notice and the Special Term’s denial of the ex parte application was justified on that ground. An order denying such an application is not appealable. (Matter of Pennenga, 1 A D 2d 919.) There was, however, no authority in the Special Term to dismiss the petition in a proceeding which had not been commenced byx service of any papers upon the respondent. The proper practice would have been the denial of petitioner’s ex parte application, without prejudice to petitioner’s right to commence the proceeding by service of notice. Insofar as the order purports to dismiss the petition it must be reversed, on the law; and insofar as it be deemed to deny petitioner’s ex parte application for an order to show cause, the appeal therefrom must be dismissed; in each case, without costs. Foster, P. J., Bergan, Gibson and Herlihy, JJ., concur.