                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 18, 2014                   515161
________________________________

In the Matter of JESSIE J.
   BARNES,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

DR. SCHROYER, as Medical
   Director of Upstate
   Correctional Facility,
   et al.,
                    Respondents.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Stein, Rose, Lynch and Devine, JJ.

                             __________


     Jessie J. Barnes, Malone, appellant pro se.

                             __________


      Appeal from an order of the Supreme Court (Feldstein, J.),
entered May 25, 2012 in Franklin County, which, in a proceeding
pursuant to CPLR article 78, denied petitioner's motion for leave
to serve an amended petition.

      Petitioner commenced this CPLR article 78 proceeding to
challenge actions by prison officials that are related in various
ways to his medical treatment, and he requested that Supreme
Court issue an order to show cause that would direct service upon
respondents (see CPLR 403 [d]). Supreme Court declined to do so
and, upon its own motion, dismissed the petition without
prejudice, finding the petition to be "grossly substandard" in
that its opaque language would leave Supreme Court and
respondents at a loss as to the relevant facts and issues
(see CPLR 3013, 3014). Petitioner did not seek review of that
judgment. He did, however, move ex parte for leave to file an
                              -2-                  515161

amended petition. Because a judgment of dismissal had been
entered, however, Supreme Court denied the motion. Petitioner
now appeals.

      An appeal does not lie from an ex parte order such as the
one at issue here (see CPLR 5701 [a] [2]; Sholes v Meagher, 100
NY2d 333, 335 [2003]). Under the circumstances presented, we
decline to treat petitioner's notice of appeal as an application
for leave to appeal (see CPLR 5701 [c]; Blam v Netcher, 17 AD3d
495, 496 [2005]).

     Peters, P.J., Stein, Rose, Lynch and Devine, JJ., concur.



     ORDERED that the appeal is dismissed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
