Stanley v. Property Clerk of Police Department of Ramapo

In a proceeding pursuant to CPLR article 78, inter alia, to recover certain property claimed to be in the possession of the respondents, petitioner appeals from an order and judgment (one paper) of the Supreme Court, Rockland County, entered September 15, 1977, which (1) denied petitioner’s motion for leave to proceed as a poor person, without prejudice to the renewal thereof upon proper papers, and (2) granted, without prejudice, the motion of the respondent Property Clerk of the Police Department of the Village of Spring Valley to dismiss the petition for failure to state a cause of action. Order and judgment affirmed, without costs or disbursements. The denial of the application for leave to proceed as a poor person was proper in view of petitioner’s failure to serve the County Attorney of Rockland County. Service upon the District Attorney is not sufficient (see CPLR 1101, subd [c]). Upon reapplication, if one is made, the desirability of assigning an attorney to represent petitioner pursuant to CPLR 1102 (subd [a]) should be carefully considered. Turning to the balance of the order appealed from, it is our belief that while section 410.00 of the Penal Law is not dispositive of the motion to dismiss, the allegations contained in the petition are more properly cognizable in an action for replevin and not, as presently pleaded, in the posture of an article 78 proceeding (see Clay v McCabe, 56 AD2d 747; cf. Matter of Caggiano v Frank, 44 AD2d 828; see, also, Metallic Flowers v City of New York, 4 AD2d 292, 298-299, mod 5 NY2d 246; People v Spencer, '64 Mise 2d 1013, 1016). Hopkins, J. P., Titone, Gulotta and O’Connor, JJ., concur.