Application, pursuant to CPLR 5704 (subd. [a]) to review an order of the Supreme Court at Special Term which converted an ex parte application for a writ of habeas corpus into a proceeding pursuant to CPLR article 78 and dismissed the petition on the merits. Application granted, and order entered April 23, 1984 in Clinton County vacated. Based upon our review of the original petition, we are of the opinion that it is not patently frivolous or without some merit. Accordingly, the matter is remitted to Special Term for the issuance of an order to show cause authorizing commencement of this proceeding by such service as Special Term deems appropriate (see Matter of King v Gregorie, 90 A.D.2d 922, mot. for lv. to app dsmd 58 N.Y.2d 822). Mahoney, P.J., Kane, Yesawich, Jr., Levine and Harvey, JJ., concur.