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Wisniewski v. Michalski

Appellate Division of the Supreme Court of the State of New York
Jun 20, 2013
2013 N.Y. Slip Op. 78341 (N.Y. App. Div. 2013)

Opinion

DOCKET NO. OP 13-00015

06-20-2013

IN THE MATTER OF STEVEN WISNIEWSKI, PETITIONER, v. HON. JOHN MICHALSKI, ERIE SUPREME COURT JUSTICE, FRANK A. SEDITA, III, ERIE COUNTY DISTRICT ATTORNEY, ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ANDREA W. EVANS, CHAIRWOMAN, NEW YORK STATE BOARD OF PAROLE, AND ERIE COUNTY DEPARTMENT OF PROBATION, RESPONDENTS.


PRESENT: , P. J., CENTRA, FAHEY, PERADOTTO, AND CARNI, JJ.

Respondents Hon. John Michalski, Eric T. Schneiderman, Attorney General, Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision, Andrea W. Evans, Chairwoman, New York State Board of Parole (collectively, State Respondents), and Frank A. Sedita, III, Esq., Erie County District Attorney (District Attorney) having moved to dismiss this proceeding because the petition does not comply with CPLR 3014, State Respondents having moved to dismiss the causes of action against respondents Brian Fischer and Andrea Evans for lack of subject matter jurisdiction, Erie County Department of Probation having moved to dismiss this proceeding for failure to state a cause of action, and, in the alternative, respondents having moved for an extension of time to file and serve an answer, and

Petitioner having cross-moved for permission to file an amended petition and for other relief,

Now, upon reading and filing the affirmation of Frank Brady, Esq., dated May 3, 2013, the affidavits of Steven Wisniewski sworn to May 8, 2013, and May 17, 2013, the affirmation of Michael J. Pacifico, Esq., dated May 10, 2013, the affidavit of Matthew B. Powers, Esq., sworn to May 13, 2013, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motions of State Respondents and the District Attorney insofar as they seek to dismiss this proceeding for failure to comply with the pleading requirements of CPLR 3014 are dismissed, with leave to make new motions for the same relief that contain a copy of the pleadings if petitioner fails to file and serve an amended petition in compliance with CPLR 3014, and

It is further ORDERED that the Erie County Department of Probation's motion to dismiss is denied, with leave to raise its arguments contained in its motion in its answer and brief, and

It is further ORDERED that the motion of State Respondents insofar as it seeks to dismiss the causes of action against respondents Brian Fischer and Andrea Evans for lack of subject matter jurisdiction is denied, with leave to raise the issue of subject matter jurisdiction in their answer and brief, and

It is further ORDERED that petitioner's cross motion insofar as it seeks to file and serve an amended petition is granted, on the condition that the amended petition is filed and served on or before July 22, 2013, in accordance with the CPLR and this Court's rules, and the Clerk shall accept the amended petition for filing, and

It is further ORDERED that petitioner's cross motion is otherwise denied, and

It is further ORDERED that respondents' motions insofar as they seek an extension of time to file and serve answers are granted on the condition that the answers are filed and served on or before August 26, 2013, and the Clerk shall accept the answers for filing, and

It is further ORDERED that petitioner's brief shall be filed and served on or before September 25, 2013, and the Clerk shall accept the brief for filing, and

It is further ORDERED that respondents' briefs shall be filed and served on or before October 30, 2012, and the Clerk shall accept the briefs for filing, and

It is further ORDERED that the proceeding is removed from the calendar of this Court for the term commencing October 15, 2013, and added to the calendar for the term of this Court commencing December 2, 2013.

Frances E. Cafarell, Clerk


Summaries of

Wisniewski v. Michalski

Appellate Division of the Supreme Court of the State of New York
Jun 20, 2013
2013 N.Y. Slip Op. 78341 (N.Y. App. Div. 2013)
Case details for

Wisniewski v. Michalski

Case Details

Full title:IN THE MATTER OF STEVEN WISNIEWSKI, PETITIONER, v. HON. JOHN MICHALSKI…

Court:Appellate Division of the Supreme Court of the State of New York

Date published: Jun 20, 2013

Citations

2013 N.Y. Slip Op. 78341 (N.Y. App. Div. 2013)