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Abreu v. Hutchings

State of New York Supreme Court, Appellate Division Third Judicial Department


March 11, 2010

CARLOS ABREU, APPELLANT,
v.
BETSY HUTCHINGS ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: January 25, 2010

Before: Cardona, P.J., Spain, Malone Jr., Stein and McCarthy, JJ.

Appeal from an order of the Supreme Court (O'Shea, J.), entered March 24, 2009 in Chemung County, which, among other things, dismissed plaintiff's complaint for failure to file an attorney's certificate of merit pursuant to CPLR 1101 (b).

Plaintiff, a prison inmate, commenced this action by summons and complaint in December 2008 and, shortly thereafter, moved to proceed as a poor person. Supreme Court, in an order entered January 8, 2009, directed plaintiff to file an attorney's certificate of merit pursuant to CPLR 1101 (b) within 60 days. After plaintiff failed to submit the certificate to the court, the court thereafter denied plaintiff's application for poor person status and dismissed the action. Plaintiff appeals.

Initially, we find that Supreme Court did not abuse its discretion in denying plaintiff's application for poor person status, where the court directed plaintiff to file an attorney's certificate of merit and he failed to do so (see CPLR 1101 [b]; Matter of McNear v State of New York, 38 AD3d 1093, 1094 [2007], lv denied 9 NY3d 801 [2007]; Matter of Abbott v Conway, 148 AD2d 909, 910 [1989], lv denied 74 NY2d 608 [1989]). However, while the denial of plaintiff's application was proper, we are unable to discern from the record why the court took the additional step of dismissing plaintiff's complaint and, therefore, must remit for further proceedings. We have examined plaintiff's remaining contentions and, to the extent not specifically addressed herein, we find them to be without merit.

Cardona, P.J., Spain, Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as dismissed the complaint; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

20100311

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