
    In the Matter of Francis Kearse, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
   In a proceeding pursuant to CPLR article 78 to compel the Department of Correctional Services to comply with a resentencing order of the Supreme Court, Queens County (Farrell, J.), dated November 3, 1967, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rotker, J.), dated March 12, 1986, which dismissed the proceeding.

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 NY2d 806). Consequently, the CPLR article 78 proceeding was properly dismissed. Thompson, J. P., Rubin, Sullivan and Rosenblatt, JJ., concur.  