Kinzer v. Executive Department

Appellate Division of the Supreme Court of New York

Kinzer v. Executive Department

255 A.D.2d 860, 682 N.Y.S.2d 249, 1998 N.Y. App. Div. LEXIS 12771

Appellate Division of the Supreme Court of the State of New York·Decided November 25, 1998·Published·Cited by 1 cases

Opinion

—Appeal from a judgment of the Supreme Court (Canfield, J.), entered April 16, 1998 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding contending that respondent’s determination to revoke his parole should be annulled. Supreme Court dismissed the proceeding on the ground of lack of personal jurisdiction arising out of petitioner’s admitted failure to serve respondent within the time requirements set forth in the order to show cause authorizing service by mail. Although procedural requirements may be relaxed in cases where “imprisonment presents obstacles to service that are beyond an inmate’s power to control” (Matter of Hoyer v Coughlin, 179 AD2d 921), petitioner presents nothing here that would support a conclusion that he was not capable of satisfying the applicable procedural require-[861]*861merits (see, Matter of Joshua v Commissioner of Dept. of Correctional Servs., 240 AD2d 797). Accordingly, Supreme Court’s judgment dismissing the petition must be affirmed.

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

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—Appeal from a judgment of the Supreme Court (Canfield, J.), entered April 16, 1998 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding contending that respondent’s determination to revoke his parole should be annulled. Supreme Court dismissed the proceeding on the ground of lack of personal jurisdiction arising out of petitioner’s admitted failure to serve respondent within the time requirements set forth in the order to show cause authorizing service by mail. Although procedural requirements may be relaxed in cases where “imprisonment presents obstacles to service that are beyond an inmate’s power to control” (Matter of Hoyer v Coughlin, 179 AD2d 921), petitioner presents nothing here that would support a conclusion that he was not capable of satisfying the applicable procedural require-[861]*861merits (see, Matter of Joshua v Commissioner of Dept. of Correctional Servs., 240 AD2d 797). Accordingly, Supreme Court’s judgment dismissing the petition must be affirmed.

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

Kinzer v. Executive Department, 255 A.D.2d 860, 682 N.Y.S.2d 249, 1998 N.Y. App. Div. LEXIS 12771 (N.Y. Ct. App. 1998).

Pincite

255 A.D.2d 860 (Kinzer v. Executive Department) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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