In re Madison

261 A.D.2d 738, 689 N.Y.S.2d 732, 1999 N.Y. App. Div. LEXIS 5348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1999
• Status: Published

Opinion

—Appeal from an amended order of the Supreme Court (Ellison, J.), entered August 24, 1998 in Chemung County, which dismissed petitioner’s application pursuant to Civil Rights Law article 6 to change his name.

Petitioner, an inmate at Southport Correctional Facility in Chemung County currently serving a to 15-year sentence upon his conviction of robbery in the second degree and a 3V2 to 7-year sentence for assault in the first degree, petitioned to have his name changed to Diallo Rafik Asar Madison for the purpose of conforming to the practice of his Islamic faith. Supreme Court dismissed the petition based principally on the court’s conclusion that the name change would result in recordkeeping problems for various governmental agencies. This appeal by petitioner ensued.

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We reverse. Upon examination of the petition and the grounds cited by Supreme Court in support of its dismissal, we conclude that the relief should be granted. Notably, Supreme Court denied the requested relief citing recordkeeping difficulties even though the record was not developed sufficiently to support this ground (see, Matter of Washington, 216 AD2d 781, 782). We perceive no need to remit the matter for the purpose of a hearing (see, id.), as the Attorney General has submitted a letter to this Court indicating that the Department of Correctional Services does not oppose petitioner’s application to change his name. Accordingly, in the absence of a “demonstrable reason not to do so” (id., at 782), the petition should be granted.

Cardona, P. J., Mercure, Yesawich Jr., Peters and Spain, JJ., concur. Ordered that the order is reversed, on the law, without costs, petition granted, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.

We note that although petitioner has appealed from an ex parte order which is not appealable as of right (see, CPLR 5701 [1], [2]), we deem it appropriate under the circumstances to “treat the appeal as an application by petitioner for review pursuant to CPLR 5704 (a)” (Matter of Washington, 216 AD2d 781).