Hock v. Brennan

107 A.D.3d 991, 966 N.Y.S.2d 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2013
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, in effect, in the nature of prohibition to prohibit the respondent Michael Brennan, a Justice of the Supreme Court, Kings County, from enforcing an order dated April 8, 2013, which vacated an order of the same court dated May 24, 2011, staying the execution of a judgment rendered against the petitioner on May 19, 2011, in a criminal action entitled People v Hock, commenced under Kings County Criminal Court docket No. 76512/08. In an order to show cause dated April 19, 2013, a Justice of this Court (Mastro, J.) temporarily stayed enforcement of the order dated April 8, 2013, pending hearing and determination of this proceeding.

Adjudged that the petition is denied and the proceeding is dismissed, without prejudice to the petitioner’s commencement of a new proceeding, and it is further;

Ordered that the temporary stay of enforcement the order dated April 8, 2013, as set forth in the order to show cause dated April 19, 2013, is extended for 30 days from service upon the petitioner of a copy of this Court’s decision and order only to the extent that the order dated April 8, 2013, directs execution of the sentence of incarceration.

Since the petitioner effected service only upon the Attorney General and did not personally serve the respondent Justice Michael Brennan, personal jurisdiction over Justice Brennan was not obtained, and the proceeding must, therefore, be dismissed (see CPLR 7804 [c]; Matter of Thurston v Annetts, 37 AD3d 726, 727 [2007]; Matter of Conciatori v Office of Secretary of State, 15 AD3d 397, 398 [2005]; Matter of S&S Grocery of NY Corp. v Novello, 12 AD3d 448, 449 [2004]; Matter of Lothrop v Edelstein, 112 AD2d 433, 434 [1985]). Angiolillo, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.