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Matter of Porter v. Senkowski

Appellate Division of the Supreme Court of New York, Third Department
Jul 15, 1999
263 A.D.2d 708 (N.Y. App. Div. 1999)

Opinion

July 15, 1999

Appeal from a judgment of the Supreme Court (McGill, J.), entered August 10, 1998 in Clinton County, which denied petitioner's application for an order to show cause commencing a proceeding against respondents pursuant to CPLR article 78.

Andre Porter, Comstock, appellant in person.

Eliot Spitzer, Attorney-General (Julie Sheridan of counsel), Albany, for Daniel Senkowski, respondent.

Before: CARDONA, P.J., MERCURE, PETERS, CARPINELLO and GRAFFEO, JJ.


MEMORANDUM AND ORDER

Petitioner, a pro se prison inmate, filed a verified petition purporting to commence a CPLR article 78 proceeding seeking an order to compel the Clinton County District Attorney to investigate various criminal charges petitioner had made against Department of Correctional Services personnel. Supreme Court treated the petition as a request for an order to show cause and denied the request, prompting petitioner to file a notice of appeal. The appeal must be dismissed insofar as the denial of an ex parte order to show cause is not appealable (see, Matter of Konigsberg v. Coughlin, 200 A.D.2d 848). In any event, even treating petitioner's papers on appeal as an application for review pursuant to CPLR 5704 (a), we must deny the application (see,Matter of Malik v. Coughlin, 128 A.D.2d 977). Given the allegations in the petition and the District Attorney's broad power in determining when and in what manner to prosecute crimes (see generally, Holtzman v. Goldman, 71 N.Y.2d 564, 573), we find no reason to disturb Supreme Court's conclusion that petitioner could not have prevailed in this CPLR article 78 proceeding.

ORDERED that the appeal is dismissed, without costs.


Summaries of

Matter of Porter v. Senkowski

Appellate Division of the Supreme Court of New York, Third Department
Jul 15, 1999
263 A.D.2d 708 (N.Y. App. Div. 1999)
Case details for

Matter of Porter v. Senkowski

Case Details

Full title:In the Matter of ANDRE PORTER, Appellant, v. DANIEL SENKOWSKI, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 15, 1999

Citations

263 A.D.2d 708 (N.Y. App. Div. 1999)
692 N.Y.S.2d 859

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