Driscoll v Delarosa

Driscoll v Delarosa

2008 NY Slip Op 09834 [57 AD3d 317]

December 16, 2008

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 11, 2009

Michael Driscoll, Appellant,

v

Neyda Delarosa, Defendant, and New York State Attorney General Litigation Unit, Respondent.

—[*1] Michael Driscoll, appellant pro se.

Andrew M. Cuomo, Attorney General, New York (Diana R.H. Winters of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about May 14, 2008, which declined to sign an order to show cause, unanimously dismissed, without costs, as taken from a nonappealable paper.

An order declining to sign an order to show cause is not appealable (CPLR 5701 [a] [2]; Heath v Wojtowicz, 48 AD3d 214 [2008], lv denied 10 NY3d 708 [2008]). We would add that to the extent plaintiff seeks damages against the State, Supreme Court lacks subject matter jurisdiction (Court of Claims Act §§ 8, 9; Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339 n 3 [1993]). Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.