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In the Matter of Carlos Abreu v. Sarah Hicks

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


January 26, 2012

IN THE MATTER OF CARLOS ABREU, APPELLANT,
v.
SARAH HICKS, AS DIRECTOR OF THE BEHAVIORAL HOUSING UNIT OF GREAT MEADOW CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered March 18, 2011 in Albany County, which in a combined proceeding pursuant to CPLR article 78 and action pursuant to 42 USC § 1983, denied petitioner's motion for a default judgment.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Rose, Malone Jr., Kavanagh and McCarthy, JJ.

Petitioner, a prison inmate, commenced a combined proceeding pursuant to CPLR article 78 and action pursuant to 42 USC § 1983 against respondents in July 2009. After receiving no answer, petitioner moved for a default judgment in December 2010. Supreme Court denied petitioner's motion and this appeal ensued. Inasmuch as the record fails to contain any proof that respondents were served a copy of the petition in the first instance, the judgment must be affirmed (see CPLR 3215 [f]).

Mercure, Acting P.J., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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