Lee v. New York State Department of Parole

252 A.D.2d 703, 675 N.Y.S.2d 424, 1998 N.Y. App. Div. LEXIS 8209

Opinion

—Appeal from a judgment of the Supreme Court (Graffeo, J.), entered December 5, 1997 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to exhaust administrative remedies and lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding challenging respondents’ determination revoking his parole and imposing a term of imprisonment. Supreme Court granted respondents’ motion to dismiss the petition for lack of personal jurisdiction and failure to exhaust administrative remedies. We affirm. Petitioner commenced this proceeding while his final parole revocation hearing was still pending and nearly two months before the parole revocation determination was rendered. Petitioner having failed to pursue an administrative appeal from the final determination prior to commencing this proceeding, and there being no indication that the claimed errors could not have been remedied in the administrative appeal process, the petition was appropriately dismissed (see, Matter of Boyer v Chairman, New York State Parole Bd., 199 ; Matter of Trimaldi v Superintendent of Washington Correctional Facility, 169 AD2d 960). Finally, petitioner’s unexplained failure to comply with the service requirements set forth in the order to show cause warranted dismissal of the petition on the additional ground of lack of personal jurisdiction (see, Matter of Wilder v New York State Div. of Parole, 249 AD2d 606; Matter of Arroyo v Coombe, 239 AD2d 634, lv denied 90 NY2d 812).

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