Chabier v. Scully

152 A.D.2d 569, 543 N.Y.S.2d 959, 1989 N.Y. App. Div. LEXIS 9609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1989
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Department of Correctional Services which denied the petitioner access to portions of certain publications, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Donovan, J.), entered April 26, 1988, which dismissed the petition.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner concedes that service by ordinary mail of the petition and the amended petition was insufficient to confer personal jurisdiction over the respondents (see, Matter of Dello v Selsky, 135 AD2d 994; Matter of Brown v Scully, 135 AD2d 713; Matter of Scott v Coughlin, 111 AD2d 480). His contention that this jurisdictional defect should be excused on the ground of ineffective assistance of counsel is without merit (see, Matter of Allen v Board of Regents, 140 AD2d 824; Matter of Sasson v Commissioner of Educ., 127 AD2d 875; Walston v Axelrod, 103 AD2d 769). Since jurisdiction was never acquired over the respondents, the petitioner is precluded from obtaining judicial review of the merits of his claim. Mangano, J. P., Brown, Lawrence and Eiber, JJ., concur.