Jay v. Fischer

102 A.D.3d 1021, 957 N.Y.S.2d 907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2013
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 31, 2011 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondents moved to dismiss the proceeding on the ground that it was barred by the four-month statute of limitations set forth in CPLR 217 (1). Petitioner did not submit any papers in opposition. Supreme Court granted the motion and dismissed the petition. Petitioner appeals.

“ ‘It is well settled that a party cannot appeal from an order entered upon default, the proper procedure being to move to vacate the default and, if necessary, appeal from the denial of that motion’ ” (Matter of Derek P. v Doris Q., 92 AD3d 1103, 1105 [2012], lv dismissed and denied, 19 NY3d 831 [2012], quoting Matter of Scott v Jenkins, 62 AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]; see Matter of Naomi KK. v Natasha LL., 80 AD3d 834, 835 [2011], lv denied 16 NY3d 711 [2011]). As that was not done in this case, petitioner’s appeal must be dismissed.

Peters, P.J., Rose, Spain, McCarthy and Garry, JJ., concur. Ordered that the appeal is dismissed, without costs.