Dello v. Selsky

Appellate Division of the Supreme Court of New York

Dello v. Selsky

135 A.D.2d 994, 522 N.Y.S.2d 716, 1987 N.Y. App. Div. LEXIS 52882

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

DecidedDecember 23, 1987

StatusPublished

Cited by5 cases

This text of 135 A.D.2d 994 (Dello v. Selsky) 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

Dello v. Selsky, 135 A.D.2d 994, 522 N.Y.S.2d 716, 1987 N.Y. App. Div. LEXIS 52882 (N.Y. Ct. App. 1987).

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Opinion

— Main, J.

Appeal from a judgment of the Supreme Court (Kahn, J.), entered March 24, 1987 in Albany County, which, in a proceeding pursuant to CPLR article 78, inter alia, granted respondents’ motion to dismiss the petition for lack of jurisdiction.

Petitioner seeks review of a disciplinary determination and an order denying his application for permission to proceed as a poor person under CPLR article 11. Petitioner’s notice of petition, petition and motion papers were served on respon[995]*995dents by mail only. Respondents moved to dismiss for lack of personal jurisdiction; Supreme Court granted the motion and denied petitioner’s application under CPLR article 11. This appeal by petitioner followed.

It is axiomatic that service by mail, absent issuance of an order to show cause authorizing service by mail in lieu of personal service, is jurisdictionally defective (CPLR 403 [c], [d]; 7804 [c]; Matter of Scott v Coughlin, 111 AD2d 480, lv denied 65 NY2d 606). Inasmuch as more than four months have passed since the challenged acts and determinations have become final, and the applicable Statute of Limitations for CPLR article 78 proceedings has expired (see, CPLR 217), there is no reason to remit this matter for an order to show cause (see, Matter of Scott v Coughlin, supra). In this regard, we find nothing in petitioner’s submissions, unlike those presented in Matter of Hanson v Coughlin (103 AD2d 949) and Matter of Davis v Coughlin (96 AD2d 682), to warrant their treatment as an application to permit alternative service (see, Matter of Scott v Coughlin, supra). Furthermore, although an application under CPLR article 11 can be made prior to commencement of an action, we find no error in the denial of petitioner’s application thereunder, especially considering petitioner’s inability to maintain his allegations in timely fashion.

Judgment affirmed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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— Main, J.

Appeal from a judgment of the Supreme Court (Kahn, J.), entered March 24, 1987 in Albany County, which, in a proceeding pursuant to CPLR article 78, inter alia, granted respondents’ motion to dismiss the petition for lack of jurisdiction.

Petitioner seeks review of a disciplinary determination and an order denying his application for permission to proceed as a poor person under CPLR article 11. Petitioner’s notice of petition, petition and motion papers were served on respon[995]*995dents by mail only. Respondents moved to dismiss for lack of personal jurisdiction; Supreme Court granted the motion and denied petitioner’s application under CPLR article 11. This appeal by petitioner followed.

It is axiomatic that service by mail, absent issuance of an order to show cause authorizing service by mail in lieu of personal service, is jurisdictionally defective (CPLR 403 [c], [d]; 7804 [c]; Matter of Scott v Coughlin, 111 AD2d 480, lv denied 65 NY2d 606). Inasmuch as more than four months have passed since the challenged acts and determinations have become final, and the applicable Statute of Limitations for CPLR article 78 proceedings has expired (see, CPLR 217), there is no reason to remit this matter for an order to show cause (see, Matter of Scott v Coughlin, supra). In this regard, we find nothing in petitioner’s submissions, unlike those presented in Matter of Hanson v Coughlin (103 AD2d 949) and Matter of Davis v Coughlin (96 AD2d 682), to warrant their treatment as an application to permit alternative service (see, Matter of Scott v Coughlin, supra). Furthermore, although an application under CPLR article 11 can be made prior to commencement of an action, we find no error in the denial of petitioner’s application thereunder, especially considering petitioner’s inability to maintain his allegations in timely fashion.

Judgment affirmed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Bluebook (online)

135 A.D.2d 994, 522 N.Y.S.2d 716, 1987 N.Y. App. Div. LEXIS 52882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dello-v-selsky-nyappdiv-1987.

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