Matter of Jones v Hickey

Matter of Jones v Hickey 2015 NY Slip Op 02531 Decided on March 26, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 26, 2015
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[*1]In the Matter of ROBERT JONES, Appellant,

v

KEVIN P. HICKEY, as Assistant Attorney General of the State of New York, Respondent.

Calendar Date: February 11, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

Robert Jones, Coxsackie, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Egan Jr., J.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Elliott III, J.), entered October 22, 2013 in Greene County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding seeking to revisit the denial of a prior application for a writ of habeas corpus [FN1]. Supreme Court granted respondent's

motion to dismiss the petition and petitioner now appeals.

We affirm. Inasmuch as the relief requested by petitioner is outside the scope of a CPLR article 78 proceeding, Supreme Court properly dismissed the petition upon that ground (see CPLR 7803). Moreover, to the extent that Supreme Court treated the petition as a motion to renew, we agree that petitioner failed to demonstrate that the alleged newly discovered evidence underlying the motion "could not have been discovered sooner through the exercise of due [*2]diligence and that it would likely produce a different result" (Matter of Vega v Fischer, 108 AD3d 955, 955 [2013], lv dismissed 22 NY3d 953 [2013]; see CPLR 2221). Petitioner's remaining claims have been considered and found to be without merit.

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

Footnotes

Footnote 1: Subsequently, this Court affirmed the judgment denying petitioner's application for the writ of habeas corpus (People ex rel. Jones v Martuscello, 111 AD3d 1184 [2013], appeal dismissed 23 NY3d 957 [2014]).