
    In the Matter of James Pennington, Appellant, v Frank J. Clark, as Erie County District Attorney, et al., Respondents.
    (Appeal No. 2.)
    [762 NYS2d 559]
   Appeal from an order of Supreme Court, Erie County (Flaherty, J.), entered December 21, 2001, which dismissed petitioner’s order to show cause seeking vacatur of the memorandum decision underlying the judgment entered September 10, 2001 (appeal No. 1).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Same memorandum as in Matter of Pennington v Clark (307 AD2d 756 [2003]). Present — Pigott, Jr., P.J., Pine, Scudder, Kehoe and Gorski, JJ.  