Elufe v. Parrott

Appellate Division of the Supreme Court of New York

Elufe v. Parrott

6 A.D.3d 856, 773 N.Y.S.2d 910, 2004 N.Y. App. Div. LEXIS 3960

Appellate Division of the Supreme Court of the State of New York·Decided April 8, 2004·Published·Cited by 2 cases

Opinion

[857] Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 10, 2003 in Clinton County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge three determinations finding him guilty of multiple disciplinary rule violations. Supreme Court granted respondent’s motion to dismiss the petition for lack of personal jurisdiction due to petitioner’s failure to serve respondent or the Attorney General with an executed order to show cause as directed.

We affirm. Absent a showing that prison presented an obstacle to service beyond an inmate’s control, failure to comply with the service requirements set forth in an order to show cause requires dismissal for lack of personal jurisdiction (see Matter of Townes v Selsky, 309 AD2d 1106 [2003]; Matter of Bennett v Selsky, 306 AD2d 597 [2003]). Inasmuch as petitioner made no such showing here, the petition was properly dismissed.

Crew III, J.P, Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

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[857] Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 10, 2003 in Clinton County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge three determinations finding him guilty of multiple disciplinary rule violations. Supreme Court granted respondent’s motion to dismiss the petition for lack of personal jurisdiction due to petitioner’s failure to serve respondent or the Attorney General with an executed order to show cause as directed.

We affirm. Absent a showing that prison presented an obstacle to service beyond an inmate’s control, failure to comply with the service requirements set forth in an order to show cause requires dismissal for lack of personal jurisdiction (see Matter of Townes v Selsky, 309 AD2d 1106 [2003]; Matter of Bennett v Selsky, 306 AD2d 597 [2003]). Inasmuch as petitioner made no such showing here, the petition was properly dismissed.

Crew III, J.P, Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

Elufe v. Parrott, 6 A.D.3d 856, 773 N.Y.S.2d 910, 2004 N.Y. App. Div. LEXIS 3960 (N.Y. Ct. App. 2004).

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6 A.D.3d 856 (Elufe v. Parrott) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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