Matter of Washington v. Annucci

2017 NY Slip Op 6582, 153 A.D.3d 1504, 59 N.Y.S.3d 916

Opinion

Appeal from a decision of the Supreme Court (McKeighan, J.), dated August 24, 2016 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner sought to commence a CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondent moved to dismiss the petition on the ground that petitioner failed to timely serve respondent and the Attorney General in accordance with the order to show cause. Supreme Court, by decision dated August 24, 2016, granted the motion to dismiss the petition and this appeal ensued. As there is no language in Supreme Court’s decision that it is either a judgment or order of the court and no such judgment was entered, this Court lacks jurisdiction at this time and the appeal must be dismissed (see CPLR 5512 [a]; Matter of Graziano v County of Albany, 12 AD3d 819, 820 [2004]).

Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ., concur.

Ordered that the appeal is dismissed, without costs.