Opinion
2013-01-17
In the Matter of Nathaniel JAY, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
Nathaniel Jay, Attica, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.
Nathaniel Jay, Attica, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.
Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 31, 2011 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.
Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondents moved to dismiss the proceeding on the ground that it was barred by the four-month statute of limitations set forth in CPLR 217(1). Petitioner did not submit any papers in opposition. Supreme Court granted the motion and dismissed the petition. Petitioner appeals.
“ ‘It is well settled that a party cannot appeal from an order entered upon default, the proper procedure being to move to *908vacate the default and, if necessary, appeal from the denial of that motion’ ” (Matter of Derek P. v. Doris Q., 92 A.D.3d 1103, 1105, 939 N.Y.S.2d 151 [2012],lv. dismissed and denied, 19 N.Y.3d 831, 945 N.Y.S.2d 641, 968 N.E.2d 997 [2012], quoting Matter of Scott v. Jenkins, 62 A.D.3d 1053, 1054, 880 N.Y.S.2d 361 [2009],lv. denied13 N.Y.3d 705, 887 N.Y.S.2d 2, 915 N.E.2d 1180 [2009];see Matter of Naomi KK. v. Natasha LL., 80 A.D.3d 834, 835, 914 N.Y.S.2d 408 [2011],lv. denied16 N.Y.3d 711, 923 N.Y.S.2d 415, 947 N.E.2d 1194 [2011] ). As that was not done in this case, petitioner's appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs.