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People ex rel. De Capua v. Lape

17 A.D.3d 1041 Court N.Y. App. Div. Decision date 2005-04-29 English

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p. 1041
The People of the State of New York ex rel. Steven De Capua, Appellant, v William Lape, as Superintendent of Marcy Correctional Facility, Respondent.
[793 NYS2d 799]

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered February 26, 2004 in a proceeding pursuant to CPLR article 70. The order denied petitioner’s application pursuant to CPLR 1101 for permission to proceed as a poor person.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Petitioner appeals from an ex parte order denying his application pursuant to CPLR 1101 for permission to proceed as a poor person in the context of a habeas corpus

p. 1042
proceeding. No appeal may be taken to this Court from an ex parte order (see Sholes v Meagher, 100 NY2d 333 , 335 [2003]; see also Village of Savona v Soles, 84 AD2d 683 , 684 [1981]). Petitioner can obtain an appealable order by reapplying for poor person status in Supreme Court on notice to the County Attorney pursuant to CPLR 1101 (c) (see generally CPLR 5701 [a] [2]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.

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