Matter of Washington v Annucci

Matter of Washington v Annucci 2017 NY Slip Op 06582 Decided on September 21, 2017 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: September 21, 2017
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[*1]In the Matter of WAYNE WASHINGTON, Appellant,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: August 7, 2017
Before: Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ.

Wayne Washington, Napanoch, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Williams E. Storrs of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a decision of the Supreme Court (McKeighan, J.), dated August 24, 2016 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner sought to commence a CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondent moved to dismiss the petition on the ground that petitioner failed to timely serve respondent and the Attorney General in accordance with the order to show cause. Supreme Court, by decision dated August 24, 2016, granted the motion to dismiss the petition and this appeal ensued. As there is no language in Supreme Court's decision that it is either a judgment or order of the court and no such

judgment was entered, this Court lacks jurisdiction at this time and the appeal must be dismissed (see CPLR 5512 [1]; Matter of Graziano v County of Albany, 12 AD3d 819, 820 [2004]).

Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ., concur.

ORDERED that the appeal is dismissed, without costs.