
    Third Department,
    October, 1985
    (October 1, 1985)
    In the Matter of Sammy Burns, Petitioner, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, et al., Respondents.
   —Application, pursuant to CPLR 5704 (a), to review an order of the Supreme Court at Special Term which, in effect, denied petitioner’s application for an order to show cause to commence a proceeding against respondents pursuant to CPLR article 78. Application granted, and order entered May 8, 1985 vacated. Based upon our review of the 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 a proceeding by such service as Special Term deems appropriate (see, Matter of King v Gregorie, 90 AD2d 922, Iv dismissed 58 NY2d 822). Main, J. P., Casey, Weiss, Mikoll and Yesawich, Jr., JJ., concur.  