Matter of Harris v. Division of Parole

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 22, 2014 in Franklin County, which, among other things, denied petitioner’s application for an order to show cause to commence a CPLR article 78 proceeding.

Petitioner, an inmate, sought to commence a CPLR article 78 proceeding to, among other things, challenge a determination revoking his parole. Supreme Court declined to issue the order to show cause, but granted petitioner leave to serve an amended petition. Petitioner filed an amended petition and Supreme Court denied his application for an order to show cause and dismissed the petition and amended petition. Petitioner now appeals.

Generally, no appeal lies from the denial of an ex parte application for an order to show cause (see Matter of Walker v Fischer, 104 AD3d 1001, 1002 [2013]; Matter of Tafari v Rock, 87 AD3d 792, 792 [2011], lv dismissed 17 NY3d 950 [2011]). Petitioner’s attempt to appeal falls within this rule, and his appeal must be dismissed (see Matter of Walker v Fischer, 104 AD3d at 1002).

Ordered that the appeal is dismissed, without costs.