Opinion
2014-09-18
In the Matter of Jessie J. BARNES, Appellant, v. Dr. SCHROYER, as Medical Director of Upstate Correctional Facility, et al., Respondents.
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 ( seeCPLR 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 ( seeCPLR 3013, 3014). Petitioner did not seek review of that judgment. He did, however, move ex parte for leave to file an 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 ( seeCPLR 5701[a][2]; Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ). Under the circumstances presented, we decline to treat petitioner's notice of appeal as an application for leave to appeal ( seeCPLR 5701[c]; Blam v. Netcher, 17 A.D.3d 495, 496, 793 N.Y.S.2d 464 [2005] ).
ORDERED that the appeal is dismissed, without costs. PETERS, P.J., STEIN, ROSE, LYNCH and DEVINE, JJ., concur.