Arce v. Eagen

Appellate Division of the Supreme Court of New York

Arce v. Eagen

267 A.D.2d 520, 699 N.Y.S.2d 748, 1999 N.Y. App. Div. LEXIS 12426

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 2, 1999

StatusPublished

Cited by2 cases

This text of 267 A.D.2d 520 (Arce v. Eagen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arce v. Eagen, 267 A.D.2d 520, 699 N.Y.S.2d 748, 1999 N.Y. App. Div. LEXIS 12426 (N.Y. Ct. App. 1999).

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Opinion

—Appeal from a judgment of the Supreme Court (Teresi, J.), entered November 17, 1998 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for lack of personal jurisdiction.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding principally challenging a determination denying his grievance. Supreme Court dismissed the proceeding on the ground of lack of personal jurisdiction and we affirm. Attached to respondent’s motion to dismiss is his sworn affidavit averring that he was never served with a copy of the amended order to show cause, petition or supporting papers which were to be sent to him by first class mail in accordance with the relaxed service requirement provided in the amended order to show cause. Although petitioner informed Supreme Court of his claim that he sent a copy of the petition through the facility “pouch mail” service, the fact remains that, even if this assertion is true, service of only the petition does not comply with the dictates of the amended order to show cause and there is no evidence that his imprisonment created an obstacle preventing his compliance with this directive (see, Matter of Lomonaco v Travis, 264 AD2d 872). Thus, the petition was properly dismissed (see, Matter of Seifert v Selsky, 260 AD2d 823).

Cardona, P. J., Mikoll, Crew III, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Teresi, J.), entered November 17, 1998 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for lack of personal jurisdiction.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding principally challenging a determination denying his grievance. Supreme Court dismissed the proceeding on the ground of lack of personal jurisdiction and we affirm. Attached to respondent’s motion to dismiss is his sworn affidavit averring that he was never served with a copy of the amended order to show cause, petition or supporting papers which were to be sent to him by first class mail in accordance with the relaxed service requirement provided in the amended order to show cause. Although petitioner informed Supreme Court of his claim that he sent a copy of the petition through the facility “pouch mail” service, the fact remains that, even if this assertion is true, service of only the petition does not comply with the dictates of the amended order to show cause and there is no evidence that his imprisonment created an obstacle preventing his compliance with this directive (see, Matter of Lomonaco v Travis, 264 AD2d 872). Thus, the petition was properly dismissed (see, Matter of Seifert v Selsky, 260 AD2d 823).

Cardona, P. J., Mikoll, Crew III, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

267 A.D.2d 520, 699 N.Y.S.2d 748, 1999 N.Y. App. Div. LEXIS 12426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arce-v-eagen-nyappdiv-1999.

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