Branch v. Hammock

¶1— Appeal unanimously dismissed. Memorandum: The judgment was entered upon the denial of an ex parte application for an order to show cause to commence a CPLR article 78 proceeding. It is not appealable (Matter ofScotti, 53 AD2d 282, 285-286). Although the proceeding was not otherwise properly instituted by personal service of a notice of petition (see CPLR 403, subd [c]; 304), Special Term addressed the merits in a memorandum decision. Were we to review the merits, we would affirm. (Appeal from judgment of Supreme Court, Cayuga County, Contiguglia, J. — art 78.) Present •— Dillon, P. J., Doerr, Denman, O’Donnell and Moule, JJ.