MatterofBarnesvSchroyer

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 18, 2014
• Docket: 515161
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: September 18, 2014 515161 ________________________________

In the Matter of JESSIE J. BARNES, Appellant, v MEMORANDUM AND ORDER

DR. SCHROYER, as Medical Director of Upstate Correctional Facility, et al., Respondents. ________________________________

Calendar Date: August 4, 2014

Before: Peters, P.J., Stein, Rose, Lynch and Devine, JJ.

__________

Jessie J. Barnes, Malone, appellant pro se.

Appeal from an order of the Supreme Court (Feldstein, J.), entered May 25, 2012 in Franklin County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion for leave to serve an amended petition.

Petitioner commenced this CPLR article 78 proceeding to challenge actions by prison officials that are related in various ways to his medical treatment, and he requested that Supreme Court issue an order to show cause that would direct service upon respondents (see CPLR 403 [d]). Supreme Court declined to do so and, upon its own motion, dismissed the petition without prejudice, finding the petition to be "grossly substandard" in that its opaque language would leave Supreme Court and respondents at a loss as to the relevant facts and issues (see CPLR 3013, 3014). Petitioner did not seek review of that judgment. He did, however, move ex parte for leave to file an -2- 515161

amended petition. Because a judgment of dismissal had been entered, however, Supreme Court denied the motion. Petitioner now appeals.

An appeal does not lie from an ex parte order such as the one at issue here (see CPLR 5701 [a] [2]; Sholes v Meagher, 100 NY2d 333, 335 [2003]). Under the circumstances presented, we decline to treat petitioner's notice of appeal as an application for leave to appeal (see CPLR 5701 [c]; Blam v Netcher, 17 AD3d 495, 496 [2005]).

Peters, P.J., Stein, Rose, Lynch and Devine, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court