Jones v. Dennison

30 A.D.3d 952, 818 N.Y.S.2d 321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 2006
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (McNamara, J.), entered December 9, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of jurisdiction.

Following the denial of his request for parole release, petitioner attempted to commence the instant CPLR article 78 proceeding challenging the determination. In the order to show cause signed by Supreme Court, petitioner was directed to serve the “[o]rder to [s]how [c]ause, the petition, exhibits and any supporting affidavits, by ordinary [flirst [c]lass [m]ail, upon each named respondent and upon the Attorney General ... on or before September 16, 2005.” Although he served the papers on the Attorney General, he neglected to serve them on respondent. As a result, respondent moved to dismiss the petition for lack of jurisdiction. Supreme Court granted the motion and this appeal ensued.

We affirm. The failure to comply with the service requirements of the order to show cause requires that the petition be dismissed for lack of personal jurisdiction (see Matter of Davis v Goord, 20 AD3d 785, 786 [2005], lv dismissed and denied 5 NY3d 861 [2005]). Notably, petitioner conceded that he did not serve respondent and has not demonstrated that obstacles presented by his imprisonment prevented him from complying with the requirements of the order to show cause (see Matter of Green v Duncan, 10 AD3d 743, 744 [2004], lv denied 4 NY3d 701 [2004]; Matter of Hickey v Goord, 3 AD3d 802, 802 [2004]). Therefore, Supreme Court properly granted respondent’s motion.

Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.