Elliott v. Butler

Appellate Division of the Supreme Court of New York

Elliott v. Butler

34 A.D.3d 878, 823 N.Y.S.2d 581

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

DecidedNovember 2, 2006

StatusPublished

Cited by1 cases

This text of 34 A.D.3d 878 (Elliott v. Butler) 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

Elliott v. Butler, 34 A.D.3d 878, 823 N.Y.S.2d 581 (N.Y. Ct. App. 2006).

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Opinion

[879]*879Appeal from a judgment of the Supreme Court (Spargo, J.), entered February 23, 2006 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for lack of personal jurisdiction.

Petitioner sought to commence this CPLR article 78 proceeding challenging a determination denying a grievance involving his failure to participate in a substance abuse program. In the order to show cause, Supreme Court directed that “service of this [o]rder to [s]how [c]ause, the petition, exhibits and any supporting affidavits, by ordinary [f]irst [c]lass [m]ail, upon each named respondent and upon the Attorney General... on or before September 9, 2005, be deemed adequate.” Respondents moved to dismiss the proceeding based upon petitioner’s failure to comply with the service requirements of the order to show cause. Supreme Court granted the motion, resulting in this appeal.

We affirm. “ ‘It is well settled that an inmate’s failure to comply with the service directives set forth in the order to show cause requires dismissal of the petition absent a showing that prison presented an obstacle to the service requirements’ ” (Matter of Frederick v Goord, 20 AD3d 652, 653 [2005], lv denied 5 NY3d 712 [2005], quoting Matter of Green v Duncan, 10 AD3d 743, 744 [2004], lv denied 4 NY3d 701 [2004] [citations omitted]). Here, the affidavit of a secretary responsible for keeping track of legal papers served upon officials of the Department of Correctional Services establishes that the papers referenced in the order to show cause which were to be served upon respondent John Nuttall were never received. Although petitioner submitted an affidavit of service representing that he served Nuttall with the papers, he failed to provide any proof, such as a disbursement request, to substantiate this claim (cf. Matter of Wilder v New York State Div. of Parole, 249 AD2d 606 [1998]). Petitioner’s remaining arguments are academic.

Mercure, J.E, Spain, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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[879]*879Appeal from a judgment of the Supreme Court (Spargo, J.), entered February 23, 2006 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for lack of personal jurisdiction.

Petitioner sought to commence this CPLR article 78 proceeding challenging a determination denying a grievance involving his failure to participate in a substance abuse program. In the order to show cause, Supreme Court directed that “service of this [o]rder to [s]how [c]ause, the petition, exhibits and any supporting affidavits, by ordinary [f]irst [c]lass [m]ail, upon each named respondent and upon the Attorney General... on or before September 9, 2005, be deemed adequate.” Respondents moved to dismiss the proceeding based upon petitioner’s failure to comply with the service requirements of the order to show cause. Supreme Court granted the motion, resulting in this appeal.

We affirm. “ ‘It is well settled that an inmate’s failure to comply with the service directives set forth in the order to show cause requires dismissal of the petition absent a showing that prison presented an obstacle to the service requirements’ ” (Matter of Frederick v Goord, 20 AD3d 652, 653 [2005], lv denied 5 NY3d 712 [2005], quoting Matter of Green v Duncan, 10 AD3d 743, 744 [2004], lv denied 4 NY3d 701 [2004] [citations omitted]). Here, the affidavit of a secretary responsible for keeping track of legal papers served upon officials of the Department of Correctional Services establishes that the papers referenced in the order to show cause which were to be served upon respondent John Nuttall were never received. Although petitioner submitted an affidavit of service representing that he served Nuttall with the papers, he failed to provide any proof, such as a disbursement request, to substantiate this claim (cf. Matter of Wilder v New York State Div. of Parole, 249 AD2d 606 [1998]). Petitioner’s remaining arguments are academic.

Mercure, J.E, Spain, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

34 A.D.3d 878, 823 N.Y.S.2d 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-butler-nyappdiv-2006.

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