Adams v. Goord

8 A.D.3d 845, 778 N.Y.S.2d 554, 2004 N.Y. App. Div. LEXIS 8516

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review two determinations of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging two determinations finding him guilty of violating the prison disciplinary rules that prohibit disobeying a direct order and not complying with urinalysis procedures after he failed, on two occasions, to provide a urine sample within three hours of being ordered to do so. Respondents moved to dismiss the petition due to lack of personal jurisdiction inasmuch as petitioner failed to serve any of the named respondents in accordance with the order to show cause. Supreme Court denied the motion, directed respondents to answer and subsequently transferred the matter to this Court.

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We find that Supreme Court erred in denying respondents’ motion to dismiss the petition in view of the affidavits submitted on respondents’ behalf and petitioner’s admission in a letter to the court that he was unable to furnish respondents with the order to show cause and supporting papers due to a lack of funds. While an inmate’s failure to abide by the service requirements in an order to show cause may be excused upon a showing that prison presented an obstacle beyond the inmate’s control (see Matter of Rivera v Selsky, 292 AD2d 665 [2002]), petitioner’s assertion of insufficient funds does not constitute such an obstacle (see Matter of Hickey v Goord, 3 AD3d 802 [2004]). Accordingly, the underlying petition is dismissed.

Mercure, J.E, Crew III, Mugglin, Rose and Kane, JJ., concur. Adjudged that respondents’ motion to dismiss is granted, without costs, and petition dismissed.

The transfer order mistakenly references only one of the two hearings being challenged by petitioner.