MATTER OF KEARSE v. COUGHLIN

Ordered that the judgment is affirmed, without costs or disbursements.

We agree with the Supreme Court that the issue raised in the instant CPLR article 78 proceeding was decided against the petitioner by a 1969 order denying the petitioner's application to compel compliance with a resentence order dated November 3, 1967, from which the petitioner did not appeal. Having failed to appeal, the petitioner cannot obtain review of the 1969 order by initiating a CPLR article 78 proceeding (cf., Matter of Hennessy v. Gorman, 58 N.Y.2d 806). Consequently, the CPLR article 78 proceeding was properly dismissed. Thompson, J.P., Rubin, Sullivan and Rosenblatt, JJ., concur.