Matter of Barnes v Schroyer

Matter of Barnes v Schroyer 2014 NY Slip Op 06224 Decided on September 18, 2014 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 18, 2014
515161

[*1]In the Matter of JESSIE J. BARNES, Appellant,

v

DR. SCHROYER, as Medical Director of Upstate Correctional Facility, et al., Respondents.

Calendar Date: August 4, 2014
Before: Peters, P.J., Stein, Rose, Lynch and Devine, JJ.

Jessie J. Barnes, Malone, appellant pro se.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Feldstein, J.), entered May 25, 2012 in Franklin County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion for leave to serve an amended petition.

Petitioner commenced this CPLR article 78 proceeding to challenge actions by prison officials that are related in various ways to his medical treatment, and he requested that Supreme Court issue an order to show cause that would direct service upon respondents (see CPLR 403 [d]). Supreme Court declined to do so and, upon its own motion, dismissed the petition without prejudice, finding the petition to be "grossly substandard" in that its opaque language would leave Supreme Court and respondents at a loss as to the relevant facts and issues (see CPLR 3013, 3014). Petitioner did not seek review of that judgment. He did, however, move ex parte for leave to file an amended petition. Because a judgment of dismissal had been entered, however, Supreme Court denied the motion. Petitioner now appeals.

An appeal does not lie from an ex parte order such as the one at issue here (see CPLR 5701 [a] [2]; Sholes v Meagher, 100 NY2d 333, 335 [2003]). Under the circumstances presented, we decline to treat petitioner's notice of appeal as an application for leave to appeal (see CPLR 5701 [c]; Blam v Netcher, 17 AD3d 495, 496 [2005]).

Peters, P.J., Stein, Rose, Lynch and Devine, JJ., concur.

ORDERED that the appeal is dismissed, without costs.