Opinion
May 13, 1999
Appeal from the Supreme Court (Ellison, J.).
Petitioner, an inmate at Southport Correctional Facility in Chemung County currently serving a 7 1/2 to 15-year sentence upon his conviction of robbery in the second degree and a 3 1/2 to 7-year sentence for assault in the first degree, petitioned to have his name changed to Diallo Rafik Asar Madison for the purpose of conforming to the practice of his Islamic faith. Supreme Court dismissed the petition based principally on the court's conclusion that the name change would result in record keeping problems for various governmental agencies. This appeal by petioner ensued.
We note that although petitioner has appealed from an ex parte order which is not appealable as of right ( see, CPLR 5701 [1], [2]), we deem it appropriate under the circumstances to "treat the appeal as an application by petitioner for review pursuant to CPLR 5704 (a)" ( Matter of Washington, 216 A.D.2d 781).
We reverse. Upon examination of the petition and the grounds cited by Supreme Court in support of its dismissal, we conclude that the relief should be granted. Notably, Supreme Court denied the requested relief citing record keeping difficulties even though the record was not developed sufficiently to support this ground ( see, Matter of Washington, 216 A.D.2d 781, 782). We perceive no need to remit the matter for the purpose of a hearing ( see, id.), as the Attorney General has submitted a letter to this Court indicating that the Department of Correctional Services does not oppose petitioner's application to change his name. Accordingly, in the absence of a "demonstrable reason not to do so" ( id., at 782), the petition should be granted.
Cardona, P. J., Mercure, Yesawich Jr., Peters and Spain, JJ., concur.
Ordered that the order is reversed, on the law, without costs, petition granted, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.