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In the Matter of Sheldon P. Johnson v. Joseph T. Smith

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


January 13, 2011

IN THE MATTER OF SHELDON P. JOHNSON,
APPELLANT,
v.
JOSEPH T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered January 27, 2010 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

The opinion of the court was delivered by: Cardona, P.J.

MEMORANDUM AND ORDER

Calendar Date: November 15, 2010

Before: Cardona, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

Petitioner commenced this CPLR article 78 proceeding challenging the denial of a grievance he filed with respect to an alleged error in the calculation of his sentence. Respondent moved to dismiss the petition for lack of personal jurisdiction, and Supreme Court granted the motion. Petitioner appeals.

Petitioner did not serve a notice of appeal on the Attorney General within 35 days after the Attorney General served upon him a copy of the judgment appealed from, nor did petitioner file a notice of appeal in the Ulster County Clerk's office (see CPLR 5513 [a], [d]; CPLR 5515 [1]). Accordingly, the appeal must be dismissed (see Hecht v City of New York, 60 NY2d 57, 61 [1983]; O'Connor v Sleasman, 14 AD3d 986, 987 [2005]; Matter of Malik v Coughlin, 127 AD2d 948, 949 [1987].

Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20110113

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