Opinion
91978
February 6, 2003.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 30, 2002 in Essex County, which denied petitioner's application for an order to show cause to commence proceedings pursuant to CPLR article 78.
Donald Harris, Coxsackie, appellant pro se.
Eliot Spitzer, Attorney General, Albany (Andrea Oser of counsel), for respondent.
Before: Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
Petitioner, a pro se inmate, filed a verified petition purporting to commence a CPLR article 78 proceeding challenging a determination of the Board of Parole. Supreme Court treated the petition as an ex parte application for the issuance of an order to show cause to commence a CPLR article 78 proceeding, denied the request and dismissed the petition based upon petitioner's failure to exhaust his administrative remedies. Inasmuch as the denial of an ex parte order to show cause is not appealable, the appeal must be dismissed (see Matter of Porter v. Senkowski, 263 A.D.2d 708, 708-709; Matter of Konigsberg v. Coughlin, 200 A.D.2d 848). Were we to exercise our authority pursuant to CPLR 5704(a), we would nevertheless find that petitioner's application was properly denied inasmuch as he failed to exhaust his administrative remedies (see Matter of Salahuddin v. New York State Bd. of Parole, 91 A.D.2d 755).
MERCURE, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ., concur.
ORDERED that the appeal is dismissed, without costs.