People ex rel. De Capua v. Lape

17 A.D.3d 1041, 793 N.Y.S.2d 799, 2005 N.Y. App. Div. LEXIS 4519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered February 26, 2004 in a proceeding pursuant to CPLR article 70. The order denied petitioner’s application pursuant to CPLR 1101 for permission to proceed as a poor person.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Petitioner appeals from an ex parte order denying his application pursuant to CPLR 1101 for permission to proceed as a poor person in the context of a habeas corpus proceeding. No appeal may be taken to this Court from an ex parte order (see Sholes v Meagher, 100 NY2d 333, 335 [2003]; see also Village of Savona v Soles, 84 AD2d 683, 684 [1981]). Petitioner can obtain an appealable order by reapplying for poor person status in Supreme Court on notice to the County Attorney pursuant to CPLR 1101 (c) (see generally CPLR 5701 [a] [2]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.