                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 26, 2015                     518027
________________________________

In the Matter of ROBERT JONES,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
KEVIN P. HICKEY, as Assistant
   Attorney General of the
   State of New York,
                    Respondent.
________________________________


Calendar Date:    February 11, 2015

Before:    McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


        Robert Jones, Coxsackie, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Elliott III,
J.), entered October 22, 2013 in Greene County, which, in a
proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.

      Petitioner, a prison inmate, commenced this CPLR article 78
proceeding seeking to revisit the denial of a prior application
for a writ of habeas corpus.1 Supreme Court granted respondent's


    1
        Subsequently, this Court affirmed the judgment denying
petitioner's application for the writ of habeas corpus (People ex
rel. Jones v Martuscello, 111 AD3d 1184 [2013], appeal dismissed
                              -2-                  518027

motion to dismiss the petition and petitioner now appeals.

      We affirm. Inasmuch as the relief requested by petitioner
is outside the scope of a CPLR article 78 proceeding, Supreme
Court properly dismissed the petition upon that ground (see CPLR
7803). Moreover, to the extent that Supreme Court treated the
petition as a motion to renew, we agree that petitioner failed to
demonstrate that the alleged newly discovered evidence underlying
the motion "could not have been discovered sooner through the
exercise of due diligence and that it would likely produce a
different result" (Matter of Vega v Fischer, 108 AD3d 955, 955
[2013], lv dismissed 22 NY3d 953 [2013]; see CPLR 2221).
Petitioner's remaining claims have been considered and found to
be without merit.

     McCarthy, J.P., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




23 NY3d 957 [2014]).
