Kearse v. Coughlin

Appellate Division of the Supreme Court of New York

Kearse v. Coughlin

151 A.D.2d 760, 543 N.Y.S.2d 951, 1989 N.Y. App. Div. LEXIS 9170

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

DecidedJune 26, 1989

StatusPublished

This text of 151 A.D.2d 760 (Kearse v. Coughlin) 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

Kearse v. Coughlin, 151 A.D.2d 760, 543 N.Y.S.2d 951, 1989 N.Y. App. Div. LEXIS 9170 (N.Y. Ct. App. 1989).

Pincite

Opinion

In a proceeding pursuant to CPLR article 78 to compel the Department of Correctional Services to comply with a resentencing order of the Supreme Court, Queens County (Farrell, J.), dated November 3, 1967, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rotker, J.), dated March 12, 1986, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

We agree with the Supreme Court that the issue raised in the instant CPLR article 78 proceeding was decided against the petitioner by a 1969 order denying the petitioner’s application to compel compliance with a resentence order dated November 3, 1967, from which the petitioner did not appeal. Having failed to appeal, the petitioner cannot obtain review of the 1969 order by initiating a CPLR article 78 proceeding (cf., Matter of Hennessy v Gorman, 58 NY2d 806). Consequently, the CPLR article 78 proceeding was properly dismissed. Thompson, J. P., Rubin, Sullivan and Rosenblatt, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to compel the Department of Correctional Services to comply with a resentencing order of the Supreme Court, Queens County (Farrell, J.), dated November 3, 1967, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rotker, J.), dated March 12, 1986, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

We agree with the Supreme Court that the issue raised in the instant CPLR article 78 proceeding was decided against the petitioner by a 1969 order denying the petitioner’s application to compel compliance with a resentence order dated November 3, 1967, from which the petitioner did not appeal. Having failed to appeal, the petitioner cannot obtain review of the 1969 order by initiating a CPLR article 78 proceeding (cf., Matter of Hennessy v Gorman, 58 NY2d 806). Consequently, the CPLR article 78 proceeding was properly dismissed. Thompson, J. P., Rubin, Sullivan and Rosenblatt, JJ., concur.

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Bluebook (online)

151 A.D.2d 760, 543 N.Y.S.2d 951, 1989 N.Y. App. Div. LEXIS 9170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kearse-v-coughlin-nyappdiv-1989.

Opinion

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