Appellate Division: Second Judicial Department

M166745

E/sl

PETER B. SKELOS, J.P.

MARK C. DILLON

THOMAS A. DICKERSON

LEONARD B. AUSTIN, JJ.

2013-07054 In the Matter of Jerald Miller, appellant, v New York State Division of Human Rights, et al., respondents. (Index No. 10771/12)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to prosecute an appeal from an order of the Supreme Court, Kings County, dated April 17, 2013, as a poor person and for the assignment of counsel. By order to show cause dated October 1, 2013, the parties or their attorneys were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled proceeding on the ground that no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 and the motion was held in abeyance in the interim. Application by the appellant for leave to appeal to this Court from the order dated April 17, 2013.

Upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, and upon the application and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branch of the motion which is to dismiss the appeal from so much of the order as relates to Executive Law § 298 is denied on the ground that the portion of the order relating to Executive Law § 298 is appealable as of right (see CPLR 5701); and it is further,

ORDERED that the application is granted; and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from so much of the order as relates to CPLR article 78 is denied as academic; and it is further,

ORDERED that the branch of the appellant's motion which is for leave to prosecute the appeal on the original papers is granted, and the appeal will be heard on the original papers (including the transcript of the proceedings, if any) and on the briefs of the parties, who are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,

ORDERED that the branches of the appellant's motion which are for free transcripts, waiver of the filing fee, and the assignment of counsel are denied; and it is further,

ORDERED that on the Court's own motion, the appellant's time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing a brief on the appeal is enlarged until March 3, 2014.

SKELOS, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court