MacLeod v. Whitney

Full title: ROBERT CRAIG MACLEOD, PLAINTIFF-APPELLANT, v. PATRICK J. WHITNEY, WEST…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: Jun 17, 2019

2019 N.Y. Slip Op. 73432 (N.Y. App. Div. 2019)

Opinion

CA 19-00919

06-17-2019

ROBERT CRAIG MACLEOD, PLAINTIFF-APPELLANT, v. PATRICK J. WHITNEY, WEST IRONDEQUOIT CENTRAL SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS, TOWN OF IRONDEQUOIT, TOWN OF IRONDEQUOIT POLICE DEPARTMENT, AND MONROE COUNTY, DEFENDANTS.

WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

PRESENT:

Plaintiff having moved for permission to proceed as a poor person on the appeal taken herein from an order of the Supreme Court, Monroe County, entered February 8, 2019, and for an extension of time to perfect the appeal, and defendants Monroe County, Town of Irondequoit, and Town of Irondequoit Police Department having moved to dismiss the appeal on the ground that they are not parties to the appeal and that the appeal is untimely,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is hereby ORDERED that plaintiff's motion insofar as it seeks permission to proceed as poor person is denied, and

It is further ORDERED that plaintiff's motion insofar as it seeks an extension of time to perfect the appeal is dismissed as premature, and

It is further ORDERED that the motions of defendants Monroe County, Town of Irondequoit, and Town of Irondequoit Police Department are granted insofar as they seek to dismiss the appeal with respect to them on the ground that they are not parties to the appeal, and the appeal is dismissed with respect to them, and

It is further ORDERED that defendants' motions are otherwise denied.

Memorandum: The appeal is dismissed as to defendants Monroe County, the Town of Irondequoit, and the Irondequoit Police Department on the ground that they "were not adverse parties in the underlying proceeding" inasmuch as the complaint against them was previously dismissed (Jacobson v Mota, 16 AD3d 281, 281 [1st Dept 2005]; see CPLR 5511; Westbrook v George Distrib., 111 AD2d 440, 440 n [3d Dept 1985]). The motions to dismiss are otherwise denied inasmuch as they fail to demonstrate that plaintiff failed to take a timely appeal from the order entered February 8, 2019. Finally, permission to proceed as a poor person is denied inasmuch as the facts set forth by plaintiff fail to demonstrate either that plaintiff has a meritorious appeal or that he is unable to pay the costs, fees and expenses necessary to prosecute the appeal (see CPLR 1101 [a]; 22 NYCRR 1250.4 [d] [1]-[2]).

Entered: June 17, 2019

Mark W. Bennett

Clerk of the Court