Tyler v. Selsky

Appellate Division of the Supreme Court of New York

Tyler v. Selsky

267 A.D.2d 522, 698 N.Y.S.2d 567, 1999 N.Y. App. Div. LEXIS 12470

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

DecidedDecember 2, 1999

StatusPublished

Cited by2 cases

This text of 267 A.D.2d 522 (Tyler v. Selsky) 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

Tyler v. Selsky, 267 A.D.2d 522, 698 N.Y.S.2d 567, 1999 N.Y. App. Div. LEXIS 12470 (N.Y. Ct. App. 1999).

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Opinion

—Appeal from a judgment of the Supreme Court (McGill, J.), entered on August 20, 1998 in Clinton County, which sought to vacate part of the decision and order filed on August 4, 1998.

Plaintiff, a prison inmate, moved for, inter alia, court-ordered service of the complaint and summons in connection with his claim for monetary damages against four correction officers in their individual capacities. Although granting plaintiff’s request to proceed in forma pauperis, Supreme Court denied plaintiff’s request for court-ordered service without prejudice (see, CPLR 308 [5]) and directed plaintiff to submit an affidavit showing why service was “impracticable” so that the court would be able to make an informed decision regarding plaintiff’s request. By decision entered August 20, 1998, Supreme Court denied plaintiff’s subsequent ex parte motion to vacate that part of the decision which denied his request for court-ordered service and this appeal ensued. Because plaintiff attempts to appeal from a nonappealable order, the matter must be dismissed. Moreover, absent a showing of impracticality, Supreme Court was without power to direct service pursuant to CPLR 308 (5) (see, Cooper-Fry v Kolket, 245 AD2d 846).

Cardona, P. J., Crew III, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the appeal is dismissed, without costs.

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—Appeal from a judgment of the Supreme Court (McGill, J.), entered on August 20, 1998 in Clinton County, which sought to vacate part of the decision and order filed on August 4, 1998.

Plaintiff, a prison inmate, moved for, inter alia, court-ordered service of the complaint and summons in connection with his claim for monetary damages against four correction officers in their individual capacities. Although granting plaintiff’s request to proceed in forma pauperis, Supreme Court denied plaintiff’s request for court-ordered service without prejudice (see, CPLR 308 [5]) and directed plaintiff to submit an affidavit showing why service was “impracticable” so that the court would be able to make an informed decision regarding plaintiff’s request. By decision entered August 20, 1998, Supreme Court denied plaintiff’s subsequent ex parte motion to vacate that part of the decision which denied his request for court-ordered service and this appeal ensued. Because plaintiff attempts to appeal from a nonappealable order, the matter must be dismissed. Moreover, absent a showing of impracticality, Supreme Court was without power to direct service pursuant to CPLR 308 (5) (see, Cooper-Fry v Kolket, 245 AD2d 846).

Cardona, P. J., Crew III, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the appeal is dismissed, without costs.

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Bluebook (online)

267 A.D.2d 522, 698 N.Y.S.2d 567, 1999 N.Y. App. Div. LEXIS 12470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tyler-v-selsky-nyappdiv-1999.

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