Opinion
KAH 12-01674 Index No: CA2012-000786
11-15-2012
THE PEOPLE OF THE STATE OF NEW YORK EX REL., ANSELMO SOTO, JR., PETITIONER-APPELLANT, v. DAVID M. UNGER, SUPERINTENDENT, WYOMING CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
PRESENT: , P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
Petitioner having moved for poor person relief and assignment of counsel to prosecute an appeal from the order of Supreme Court, Oneida County dated June 6, 2012 and entered June 13, 2012,
Now, upon reading and filing the affidavit of Anselmo Soto, Jr. sworn to June 28, 2012, the notice of motion with proof of service thereof, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied with leave to renew on or before December 14, 2012 upon submission of proof that the underlying poor person application was served on the Attorney General and the County Attorney sufficient to demonstrate that the order sought to be appealed was not an ex parte order (see People ex rel De Capua v Lape, 17 AD3d 1041; see generally CPLR 5701[a][2]).
Memorandum: Pursuant to CPLR 2221(a), petitioner can also move to vacate an ex parte order denying a CPLR 1101 poor person application to pursue a habeas corpus proceeding. The motion must be made on notice to the County Attorney, the New York Attorney General and respondent. Petitioner can appeal as of right to the Appellate Division
the denial of said vacatur motion pursuant to CPLR 5701 (a) (3) (see, Sholes v Meagher, 100 NY2d 333, 335).
Frances E. Cafarell, Clerk