Brady v. Coughlin

111 A.D.2d 539, 489 N.Y.S.2d 408, 1985 N.Y. App. Div. LEXIS 51590

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1985
• Status: Published

Opinion

Yesawich, Jr., J.

Appeal from a judgment of the Supreme Court at Special Term (Cholakis, J.), entered August 30,1984 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for lack of personal jurisdiction.

In an effort to challenge respondents’ denial of petitioner’s request for certain documents under the Freedom of Information Law (Public Officers Law art 6), petitioner, an inmate at Green Haven Correctional Facility, attempted to commence a proceeding pursuant to CPLR article 78 by mailing a copy of the notice of petition and petition to the Attorney-General’s office. As respondents were never served, Special Term granted their motion to dismiss the petition for lack of personal jurisdiction (CPLR 7804, 403 [c]). Although petitioner’s method of service was indeed jurisdictionally defective, given that his claim is not clearly without merit, his solitary confinement at Green Haven, and his pro se and apparently indigent status, we chose to exercise our discretion {see, CPLR 5704 [a]), and read petitioner’s application as a request for an order permitting alternative service. Accordingly, we remit the matter to Special Term for issuance of an order to show cause authorizing commencement of this proceeding by service of said order and petition on respondents by such means and upon such conditions as Special Term deems suitable (see, Matter of Rolle v Henderson, 104 AD2d 686; Matter of Hanson v Coughlin, 103 AD2d 949; cf. Matter of King v Gregorie, 90 AD2d 922, lv dismissed 58 NY2d 822).

Judgment affirmed, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. Mahoney, P. J., Main, Casey, Weiss and Yesawich, Jr., JJ., concur.