PRESENT: SCUDDER, P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

DOCKET NO. CA 08-01492
DOCKET NO. OP 11-01215

IN THE MATTER OF MITCHELL KALWASINSKI, PETITIONER-APPELLANT, V BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-RESPONDENT. IN THE MATTER OF MITCHELL KALWASINSKI, PETITIONER, V HONORABLE MARK H. DADD, JUDGE, WYOMING COUNTY COURT, RESPONDENT.

Appellant having moved to vacate the dismissal of the appeal taken herein from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Wyoming on June 9, 2008 (Docket No. CA 08-01492), and for other relief, and

Petitioner having moved again for permission to commence an original CPLR article 78 proceeding in this Court as a poor person (Docket No. OP 11-01215), for consolidation of the above-referenced appeal with the CPLR article 78 proceeding, and for other relief,

Now, upon reading and filing the affidavit of Mitchell J. Kalwasinski sworn to August 15, 2011, the statement of Mitchell J. Kalwasinski dated September 25, 2011, the notice of motion with proof of service thereof, the affirmation of Marcus J. Mastracco, Esq., dated September 21, 2011, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is denied.

Memorandum: The motion insofar as it seeks to vacate dismissal of the appeal (CA 08-01492) is untimely. The motion insofar as it seeks permission to proceed as a poor person (OP 11-01215) is denied on the ground that the facts set forth by petitioner fail to demonstrate merit to the proceeding.

Entered: October 25, 2011

Patricia L. Morgan, Clerk