Opinion
630.4 CA 19-00873
10-09-2020
In the Matter of Joseph ROESCH, Petitioner-Appellant, v. STATE of New York, Respondent-Respondent.
JOSEPH ROESCH, PETITIONER-APPELLANT PRO SE. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
JOSEPH ROESCH, PETITIONER-APPELLANT PRO SE.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner, a resident at Central New York Psychiatric Center, commenced this CPLR article 78 proceeding seeking the assignment of counsel to represent him. He appeals from a judgment in which Supreme Court, inter alia, dismissed the petition sua sponte. Initially, we note that, although denominated an order, the court's determination dismissing the petition is properly a judgment (see CPLR 7806 ) and, despite the fact that the judgment was entered sua sponte, the appeal from the judgment is properly before us inasmuch as "[a]n appeal may be taken to the appellate division as of right in an action, originating in the [S]upreme [C]ourt or any [C]ounty [C]ourt ... from any final or interlocutory judgment" ( CPLR 5701 [a] [1] ; cf. Sholes v. Meagher , 100 N.Y.2d 333, 335 and n 1, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ; see generally Matter of Associated Gen. Contrs. of NYS, LLC v. New York State Thruway Auth. , 159 A.D.3d 1560, 1560, 70 N.Y.S.3d 420 [4th Dept. 2018] ). Nevertheless, we affirm.
Although "[u]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances" ( Associated Gen. Contrs. of NYS, LLC , 159 A.D.3d at 1560, 70 N.Y.S.3d 420 [internal quotation marks omitted] ), such circumstances exist here (see generally Matter of Almonte v. New York State Div. of Parole , 2 A.D.3d 1239, 1240, 768 N.Y.S.2d 861 [3d Dept. 2003], lv dismissed 2 N.Y.3d 758, 778 N.Y.S.2d 775, 811 N.E.2d 37 [2004] ). The instant petition seeks only the assignment of counsel, and sets forth no cause of action upon which any other relief is sought. Moreover, there is no indication in the petition that this respondent is responsible for any of the litany of wrongdoing that petitioner wishes an attorney to investigate, nor does the petition allege that there is a pending action in which the assignment of counsel might be justified. Consequently, we conclude that "the petition is wholly without merit inasmuch as petitioner is not entitled to [the] relief" he seeks ( Matter of Monroe County Fedn. of Social Workers, IUE-CWA Local 381 v. Stander , 169 A.D.3d 1479, 1480, 91 N.Y.S.3d 923 [4th Dept. 2019] ) and, "[u]nder these circumstances, [the court] properly dismissed the petition" ( Matter of Richards v. Cuomo , 88 A.D.3d 1043, 1044, 930 N.Y.S.2d 500 [3d Dept. 2011], lv dismissed 18 N.Y.3d 830, 938 N.Y.S.2d 834, 962 N.E.2d 255 [2011] ; see generally Matter of Escalera v. State of New York , 67 A.D.3d 1137, 1137-1138, 887 N.Y.S.2d 873 [3d Dept. 2009] ). Furthermore, "the court did not abuse its discretion in denying [petitioner's] application to proceed as a poor person because the [CPLR article 78] petition does not have arguable merit" ( People ex rel. Charles B. v. McCulloch , 155 A.D.3d 1559, 1560, 64 N.Y.S.3d 809 [4th Dept. 2017], lv denied 31 N.Y.3d 906, 2018 WL 2055678 [2018] [internal quotation marks omitted]; see Jefferson v. Stubbe , 107 A.D.3d 1424, 1424, 965 N.Y.S.2d 901 [4th Dept. 2013], appeal dismissed and lv denied 22 N.Y.3d 928, 976 N.Y.S.2d 442, 998 N.E.2d 1067 [2013] ; cf. Popal v. Slovis , 82 A.D.3d 1670, 1671, 919 N.Y.S.2d 445 [4th Dept. 2011], lv dismissed 17 N.Y.3d 842, 930 N.Y.S.2d 537, 954 N.E.2d 1162 [2011] ).