Hanson v. Coughlin

103 A.D.2d 949, 479 N.Y.S.2d 767, 1984 N.Y. App. Div. LEXIS 19615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 19, 1984
• Status: Published

Opinion

— Appeal, by permission, from an order of the Supreme Court at Special Term (Conway, J.), entered January 4,1984 in Albany County, which denied respondent’s motion to dismiss the petition for lack of jurisdiction. $ Petitioner, while incarcerated at Clinton Correctional Facility, brought this CPLR article 78 proceeding seeking to have certain of his medical records made available for copying under the Freedom of Information Law (Public Officers Law, art 6). He served a notice of petition and petition upon respondent and the Attorney-General by regular mail. Absent issuance of an order to show cause authorizing service by mail in lieu of personal service, service by mail is jurisdictionally defective (CPLR 403, subds [c], [d]; 7804, subd [c]; see Matter of Davis v Coughlin, 96 AD2d 682; Matter of Graffagnino [Motor Vehicle Acc. Ind. Corp.], 48 Misc 2d 441, 442). However, rather than dismiss the petition, we read petitioner’s application as seeking an order permitting alternative service and, therefore, exercise our authority under CPLR 5704 (subd [a]) and remit the matter to Special Term so petitioner may, within 20 days from entry of the order hereon, submit an order to show cause authorizing commencement of this proceeding by service of said order and petition on respondent by such means and upon such conditions as Special Term deems suitable. ¶ Order reversed, on the law, without costs, motion granted and matter remitted to Special Term for further proceedings not inconsistent herewith. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.