                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   518773
________________________________

In the Matter of ROLAND MARTIN,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   October 21, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                             __________


     Roland Martin, Wallkill, appellant pro se.

                             __________


      Appeals (1) from a judgment of the Supreme Court
(Gilpatric, J.), entered February 18, 2014 in Ulster County,
which, in a proceeding pursuant to CPLR article 78, sua sponte,
dismissed the petition, and (2) from a judgment of said court,
entered May 6, 2014 in Ulster County, which denied petitioner's
motion to renew.

      Petitioner commenced this CPLR article 78 proceeding to
challenge the omission of merit time eligibility in the
computation of his sentence. He failed to serve respondents as
required by the order to show cause, prompting Supreme Court to
dismiss the petition sua sponte. Supreme Court, in a separate
judgment, denied petitioner's subsequent motion to renew.
Petitioner now appeals from both judgments.

      Initially, we note that there is "no right of appeal from
an ex parte [judgment/order], including [one] entered sua
                              -2-                518773

sponte," such as Supreme Court's dismissal of the petition here
(Sholes v Meagher, 100 NY2d 333, 335 [2003]; see CPLR 5701 [a]
[2]; [b] [1]; Matter of Barnes v Schroyer, 120 AD3d 1492, 1492
[2014]). Under the circumstances presented here, we decline to
treat the notice of appeal from that judgment as an application
for leave to appeal (see CPLR 5701 [c]; Matter of Barnes v
Schroyer, 120 AD3d at 1492). Petitioner sought renewal pursuant
to CPLR 2221 and, while perhaps more properly viewed as one to
vacate pursuant to CPLR 5015, the judgment denying that motion
presents the salient issues for review.

      Turning to Supreme Court's denial of that motion, we
affirm. "The failure of an inmate to serve papers as directed by
an order to show cause requires the dismissal of the petition on
jurisdictional grounds, absent a showing by the inmate that
imprisonment presented an obstacle to compliance" (Matter of
Rodriguez v Fischer, 117 AD3d 1298, 1298 [2014] [internal
quotation marks and citations omitted]). Petitioner failed to
comply with the service requirements of the order to show cause
and, contrary to his assertion, the evidence presented in his
motion indicated that the obstacles preventing him from complying
with those requirements were self-created. Thus, Supreme Court
properly denied petitioner's motion (see CPLR 2221 [e] [2]; 5015
[a] [2]).

      Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.,
concur.
                              -3-                  518773

      ORDERED that the appeal from the judgment entered February
18, 2014 is dismissed, without costs.

      ORDERED that the judgment entered May 6, 2014 is affirmed,
without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
