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

DOCKET NO. OP 12-02348

IN THE MATTER OF ELBERT WELCH, PETITIONER, V HON. SARA S. FARKAS, NIAGARA COUNTY COURT JUDGE, MICHAEL VIOLANTE, NIAGARA COUNTY DISTRICT ATTORNEY, THOMAS BRANDT, ASSISTANT NIAGARA COUNTY DISTRICT ATTORNEY, HON. HENRY SCUDDER, PRESIDING JUSTICE, APPELLATE DIVISION, FOURTH DEPARTMENT, HON. ROBERT C. NOONAN, ACTING NIAGARA COUNTY COURT JUDGE, CHIEF ATTORNEY, GRIEVANCE COMMITTEE, FOURTH DEPARTMENT, SUPERINTENDENT HEATH, GREENE CORRECTIONAL FACILITY, BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS.

Petitioner having moved for permission to commence a CPLR article 78 proceeding and a habeas corpus proceeding as a poor person, and for other relief,

Now, upon reading and filing the affidavit of Elbert Welch sworn to November 9, 2012, the papers submitted therewith, the notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks to commence a CPLR article 78 proceeding as a poor person is denied, and

It is further ORDERED that the motion insofar as it seeks permission to commence a habeas corpus proceeding as a poor person is dismissed on the ground that this Court lacks jurisdiction over the proceeding because petitioner is detained at Greene Correctional Facility which is under the jurisdiction of the Supreme Court, Appellate Division, Third Judicial Department, not this Court (see CPLR 7002 [b] [2]), and

It is further ORDERED that the motion is otherwise dismissed.

Entered: January 29, 2013

Frances E. Cafarell, Clerk