Malik v. Coughlin

127 A.D.2d 948, 512 N.Y.S.2d 548, 1987 N.Y. App. Div. LEXIS 43432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1987
• Status: Published

Opinion

Mikoll, J.

Appeal from a judgment of the Supreme Court (Duskas, J.), entered June 20, 1986 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to state a claim upon which relief can be granted.

Petitioner, an inmate at Great Meadow Correctional Facility, was confined in a special housing unit (SHU) for disciplinary reasons from June 29, 1984 through November 29, 1985 and brought this CPLR article 78 proceeding seeking an order directing respondents to pay him $.45 per day in the form of public assistance during his above-mentioned period of SHU confinement. Supreme Court dismissed the petition by judgment filed June 20, 1986.

Initially, respondents contend via a footnote in their brief on this appeal that this court lacks jurisdiction to entertain the appeal due to the failure of petitioner to have timely filed a notice of appeal and to have timely served same on respondents pursuant to CPLR 5513 (a); 5515 (1); and 5520 (a). The record discloses that petitioner sent a letter dated June 23, 1986 to the Supreme Court Justice who decided the case notifying the Justice that he had submitted a notice of appeal from the decision and order entered June 20, 1986. There is no proof of the filing and service of such notice of appeal. The failure to timely file and serve a notice of appeal requires dismissal of this appeal (see, CPLR 5513 (a); 5515; Hecht v City of New York, 60 NY2d 57, 61; Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637; Matter of Trustees of Union Coll. v Board of Assessment Review, 91 AD2d 713, 714; Roy v National Grange Mut. Ins. Co., 85 AD2d 832, 833).

Appeal dismissed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.