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In the Matter of Robert I. Reed v. Brian Fischer

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


February 2, 2012

IN THE MATTER OF ROBERT I. REED, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 25, 2011 in Franklin County, which denied petitioner's application for an order to show cause to commence a CPLR article 78 proceeding.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Rose, Lahtinen, Stein and Egan Jr., JJ.

Petitioner currently is incarcerated upon his conviction of two counts of rape in the first degree (People v Reed, 212 AD2d 962 [1995], lv denied 86 NY2d 739 [1995]) and previously has commenced various unsuccessful proceedings challenging his conviction (Matter of Reed v Fischer, 79 AD3d 1517 [2010]; Matter of Reed v Travis, 19 AD3d 829 [2005], lv denied 5 NY3d 708 [2005]; People ex rel. Reed v Travis, 12 AD3d 1102 [2004], lv denied 4 NY3d 704 [2005]; Reed v Great Meadow Correctional Facility, 981 F Supp 184 [1997]). When petitioner sought to commence another CPLR article 78 proceeding to overturn his conviction based upon the alleged invalidity of the commitment order issued by the sentencing court, Supreme Court treated the application as an ex parte request for an order to show cause and denied it. Petitioner now appeals.

It is well settled that no appeal lies from the denial of an ex parte application for an order to show cause (see Matter of Tafari v Rock, 85 AD3d 1485 [2011], lv dismissed 17 NY3d 949 [2011]; Matter of Harris v Travis, 302 AD2d 650 [2003]). Consequently, the appeal must be dismissed.

Mercure, Acting P.J., Rose, Lahtinen, Stein and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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