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In the Matter of Sherman v. Brian Fischer

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


March 14, 2013

IN THE MATTER OF SHERMAN WALKER, 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 March 5, 2012 in St. Lawrence County, which denied petitioner's application for an order to show cause to commence a CPLR article 78 proceeding.

MEMORANDUM AND ORDER

Calendar Date: January 24, 2013

Before: Peters, P.J., Rose, Stein and Garry, JJ.

Petitioner, an inmate currently serving an aggregate prison term of 191/2 to 39 years in prison (see People ex rel. Walker v Yelich, 71 AD3d 1348 [2010]), filed a verified petition claiming that his 602 days of jail time credit was not applied to the aggregate maximum term and minimum period of his underlying prison sentences. Supreme Court, treating the petition as an ex parte application for the issuance of an order to show cause to commence a CPLR article 78 proceeding, denied the request and dismissed the petition on the basis that petitioner's allegation is contradicted by the exhibits he submitted in support thereof. Because the denial of an ex parte order to show cause is not appealable, the appeal must be dismissed (see Matter of Reed v Fischer, 92 AD3d 1001 [2012]; Matter of Tafari v Rock, 85 AD3d 1485 [2011], lv dismissed 17 NY3d 949 [2011]).

Peters, P.J., Rose, Stein and Garry, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER: Robert D. Mayberger Clerk of the Court

20130314

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