Morales v. Travis

Mugglin, J.

Appeal (transferred to this Court by order of the Court of Appeals) from a judgment of the Supreme Court (Kavanagh, J), entered November 15, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied petitioner’s motion for reargument.

Petitioner commenced this CPLR article 78 proceeding challenging the Board of Parole’s determination to impose special conditions upon his release. Supreme Court dismissed the petition, and petitioner did not appeal from that judgment. Petitioner thereafter filed a motion denominated as a motion to vacate the judgment. Supreme Court treated the motion as a motion for reargument and denied it. Petitioner’s appeal from that denial was originally filed in the Court of Appeals and then transferred to this Court.

Notwithstanding petitioner’s characterization of his motion, the motion does not set forth any of the grounds to vacate pursuant to CPLR 5015 (a) and, instead, alleges that Supreme Court overlooked certain significant facts and claims in its original decision. Accordingly, petitioner’s motion is, in effect, a motion for reargument from which no appeal as of right lies and, thus, this appeal must be dismissed (see Matter of Davis v Goord, 20 AD3d 785, 786 [2005], lv dismissed and denied 5 NY3d 861 [2005]; Matter of James v New York State Bd. of Parole, 15 AD3d 774, 774 [2005]).

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