Bennett v. Selsky

Appellate Division of the Supreme Court of New York

Bennett v. Selsky

306 A.D.2d 597, 759 N.Y.S.2d 708, 2003 N.Y. App. Div. LEXIS 6305

Appellate Division of the Supreme Court of the State of New York·Decided June 5, 2003·Published·Cited by 3 cases

Opinion

—Appeal from a judgment of the Supreme Court (McNamara, J.), entered June 28, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating a prison disciplinary rule. Supreme Court dismissed the proceeding on the ground of lack of personal jurisdiction as petitioner failed to serve respondent with the order to show cause or any supporting papers in accordance with the directives in the order to show cause. We alfirm. An inmate’s failure to satisfy the service requirements of an order to show cause requires dismissal for lack of personal jurisdiction absent a showing that imprisonment presents an obstacle to service beyond the inmate’s control (see Matter of Martinez v Goord, 304 AD2d 1062 [2003]). Inasmuch as petitioner failed to make such a showing, we find that the petition was properly dismissed (see id.).

Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (McNamara, J.), entered June 28, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating a prison disciplinary rule. Supreme Court dismissed the proceeding on the ground of lack of personal jurisdiction as petitioner failed to serve respondent with the order to show cause or any supporting papers in accordance with the directives in the order to show cause. We alfirm. An inmate’s failure to satisfy the service requirements of an order to show cause requires dismissal for lack of personal jurisdiction absent a showing that imprisonment presents an obstacle to service beyond the inmate’s control (see Matter of Martinez v Goord, 304 AD2d 1062 [2003]). Inasmuch as petitioner failed to make such a showing, we find that the petition was properly dismissed (see id.).

Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Bennett v. Selsky, 306 A.D.2d 597, 759 N.Y.S.2d 708, 2003 N.Y. App. Div. LEXIS 6305 (N.Y. Ct. App. 2003).

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