Matter of Barnes v. Annucci

Appellate Division of the Supreme Court of New York

Matter of Barnes v. Annucci

144 A.D.3d 1286, 40 N.Y.S.3d 284

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 2016

Docket522396

StatusPublished

Cited by5 cases

This text of 144 A.D.3d 1286 (Matter of Barnes v. Annucci) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Barnes v. Annucci, 144 A.D.3d 1286, 40 N.Y.S.3d 284 (N.Y. Ct. App. 2016).

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Opinion

Appeals (1) from a judgment of the Supreme Court (Mc-Keighan, J.), entered November 23, 2015 in Washington County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition, and (2) from a judgment of said court, entered January 19, 2016 in Washington County, which denied petitioner’s motion for reconsideration.

Petitioner, an inmate, commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Supreme Court dismissed the proceeding due to petitioner’s failure to effect service in accordance with the relaxed service directives set forth in an order to show cause. Petitioner’s subsequent motion for reconsideration was denied by Supreme Court. Petitioner appeals from both judgments.

In addition to the directive in the order to show cause that petitioner serve respondent and the Attorney General on or before September 2, 2015, it also directed that petitioner file *1287 an affidavit of service within 10 days of such service. As Supreme Court did not receive any proof from petitioner of the appropriate service, and petitioner did not present any evidence that imprisonment presented any obstacle to compliance, Supreme Court properly dismissed the proceeding for lack of jurisdiction (see Matter of Barnes v Venettozzi, 141 AD3d 1073, 1074 [2016]; Matter of Davis v Brack, 136 AD3d 1092, 1093 [2016]).

Turning to petitioner’s appeal from the January 19, 2016 judgment, we note that the nature of the motion for reconsideration was not specified. To the extent that it can be considered a motion for renewal, it was properly denied by Supreme Court as the evidence submitted in connection therewith failed to establish that petitioner complied with the service directives of the order to show cause. To the extent that the motion can be construed as a motion to reargue, no appeal lies from the denial of a motion to reargue (see Matter of Sital v Fischer, 76 AD3d 723, 724 n [2010]).

McCarthy, J.P., Lynch, Clark, Mulvey and Aarons, JJ., concur.

Ordered that the judgments are affirmed, without costs.

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Appeals (1) from a judgment of the Supreme Court (Mc-Keighan, J.), entered November 23, 2015 in Washington County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition, and (2) from a judgment of said court, entered January 19, 2016 in Washington County, which denied petitioner’s motion for reconsideration.

Petitioner, an inmate, commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Supreme Court dismissed the proceeding due to petitioner’s failure to effect service in accordance with the relaxed service directives set forth in an order to show cause. Petitioner’s subsequent motion for reconsideration was denied by Supreme Court. Petitioner appeals from both judgments.

In addition to the directive in the order to show cause that petitioner serve respondent and the Attorney General on or before September 2, 2015, it also directed that petitioner file *1287 an affidavit of service within 10 days of such service. As Supreme Court did not receive any proof from petitioner of the appropriate service, and petitioner did not present any evidence that imprisonment presented any obstacle to compliance, Supreme Court properly dismissed the proceeding for lack of jurisdiction (see Matter of Barnes v Venettozzi, 141 AD3d 1073, 1074 [2016]; Matter of Davis v Brack, 136 AD3d 1092, 1093 [2016]).

Turning to petitioner’s appeal from the January 19, 2016 judgment, we note that the nature of the motion for reconsideration was not specified. To the extent that it can be considered a motion for renewal, it was properly denied by Supreme Court as the evidence submitted in connection therewith failed to establish that petitioner complied with the service directives of the order to show cause. To the extent that the motion can be construed as a motion to reargue, no appeal lies from the denial of a motion to reargue (see Matter of Sital v Fischer, 76 AD3d 723, 724 n [2010]).

McCarthy, J.P., Lynch, Clark, Mulvey and Aarons, JJ., concur.

Ordered that the judgments are affirmed, without costs.

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144 A.D.3d 1286, 40 N.Y.S.3d 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-barnes-v-annucci-nyappdiv-2016.

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