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In the Matter of Nathaniel Jay v. Brian Fischer

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


January 17, 2013

IN THE MATTER OF NATHANIEL JAY, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 31, 2011 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: December 17, 2012

Before: Peters, P.J., Rose, Spain, McCarthy and Garry, JJ.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondents moved to dismiss the proceeding on the ground that it was barred by the four-month statute of limitations set forth in CPLR 217 (1). Petitioner did not submit any papers in opposition. Supreme Court granted the motion and dismissed the petition. Petitioner appeals.

"'It is well settled that a party cannot appeal from an order entered upon default, the proper procedure being to move to vacate the default and, if necessary, appeal from the denial of that motion'" (Matter of Derek P. v Doris Q., 92 AD3d 1103, 1105 [2012], lv dismissed and denied, 19 NY3d 831 [2012], quoting Matter of Scott v Jenkins, 62 AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]; see Matter of Naomi KK. v Natasha LL., 80 AD3d 834, 835 [2011], lv denied 16 NY3d 711 [2011]). As that was not done in this case, petitioner's appeal must be dismissed.

Peters, P.J., Rose, Spain, McCarthy and Garry, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130117

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