Harris v. Travis , 753 N.Y.S.2d 771 ( 2003 )

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 30, 2002 in Essex County, which denied petitioner’s application for an order to show cause to commence proceedings pursuant to CPLR article 78.

Petitioner, a pro se inmate, filed a verified petition purporting to commence a CPLR article 78 proceeding challenging a determination of the Board of Parole. Supreme Court treated 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 based upon petitioner’s failure to exhaust his administrative remedies. Inasmuch as the denial of an ex parte order to show cause is not appealable, the appeal must be dismissed (see Matter of Porter v Senkowski, 263 AD2d 708, 708-709; Matter of Konigsberg v Coughlin, 200 AD2d 848). Were we to exercise our authority pursuant to CPLR 5704 (a), we would nevertheless find that petitioner’s application was properly denied inasmuch as he failed to exhaust his administrative remedies (see Matter of Salahuddin v New York State Bd. of Parole, 91 AD2d 755).

Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the appeal is dismissed, without costs.