
    In the Matter of Camillo Lovacco, Appellant, v Charles S. Hirsch, as Chief Medical Examiner of the City of New York, Respondent.
    [672 NYS2d 697]
   —Judgment, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about June 12, 1997, which, in a proceeding pursuant to CPLR article 78 to compel respondent New York City Chief Medical Examiner to disclose autopsy audiotapes and other records or reports of the person petitioner was convicted of murdering, granted respondent’s motion to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.

The motion to dismiss was properly granted on authority of Matter of Mitchell v Borakove (225 AD2d 435, appeal dismissed 88 NY2d 919; see also, Matter of Katz v Scott, 236 AD2d 259, lv denied 90 NY2d 801). We have considered petitioner’s equal protection argument based upon the likelihood of success of a proceeding such as this if brought outside of the City of New York (see, Matter of Mitchell v Borakove, supra, distinguishing Matter of Diaz v Lukash, 82 NY2d 211), and find it to be without merit (see, Gardner v Michigan, 199 US 325, 333-334). Concur — Sullivan, J. P., Nardelli, Williams and Andrias, JJ.  