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

DOCKET NO. OP 15-01949

IN THE MATTER OF VLADIMIR JEANTY, PETITIONER, V HONORABLE BARRY M. DONALTY, SUPERVISING JUDGE, ONEIDA COUNTY COURT, HONORABLE MICHAEL L. DWYER, JUDGE, ONEIDA COUNTY COURT, AND HONORABLE SCOTT D. MCNAMARA, ONEIDA COUNTY DISTRICT ATTORNEY, RESPONDENTS.

Respondents Honorable Barry M. Donalty and Honorable Michael L. Dwyer having moved to dismiss this CPLR article 78 proceeding for violation of the statue of limitations and failure to state a cause of action, and for other relief, and

Petitioner having moved to expedite oral argument of this proceeding,

Now, upon reading and filing the affirmation of Frank Brady, Esq., dated December 14, 2015, the affidavits of Vladimir Jeanty sworn to December 12, 2015, and December 20, 2015, and the notices of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that respondents' motion is granted, and

It is further ORDERED that petitioner's motion is dismissed.

Memorandum: The proceeding is dismissed with respect to respondents Honorable Barry M. Donalty and Honorable Michael L. Dwyer because the petition fails to state a cause of action upon which relief can be granted. The actions of respondents Honorable Barry M. Donalty and Honorable Michael L. Dwyer were discretionary, as opposed to ministerial (see e.g. New York Civil Liberties Union v State of New York, 4 NY3d 175, 184). The proceeding is dismissed without prejudice with respect to the respondent District Attorney of Oneida County because this Court lacks subject matter jurisdiction (see CPLR 506 [b] [1]; Matter of Nolan v Lungen, 61 NY2d 788, 790).

Entered: January 13, 2016

Frances E. Cafarell, Clerk