Matter of Jay v Fischer

Matter of Jay v Fischer 2013 NY Slip Op 00241 Decided on January 17, 2013 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: January 17, 2013
514151

[*1]In the Matter of NATHANIEL JAY, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: December 17, 2012
Before: Peters, P.J., Rose, Spain, McCarthy and Garry, JJ.


Nathaniel Jay, Attica, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Kathleen M. Treasure of counsel), for respondents.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 31, 2011 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondents moved to dismiss the proceeding on the ground that it was barred by the four-month statute of limitations set forth in CPLR 217 (1). Petitioner did not submit any papers in opposition. Supreme Court granted the motion and dismissed the petition. Petitioner appeals.

"'It is well settled that a party cannot appeal from an order entered upon default, the proper procedure being to move to vacate the default and, if necessary, appeal from the denial of that motion'" (Matter of Derek P. v Doris Q., 92 AD3d 1103, 1105 [2012], lv dismissed and denied, 19 NY3d 831 [2012], quoting Matter of Scott v Jenkins, 62 AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]; see Matter of Naomi KK. v Natasha LL., 80 AD3d 834, 835 [2011], lv denied 16 NY3d 711 [2011]). As that was not done in this case, petitioner's appeal must be dismissed. [*2]

Peters, P.J., Rose, Spain, McCarthy and Garry, JJ., concur.

ORDERED that the appeal is dismissed, without costs.