Matter of Barnes v. Venettozzi

Appellate Division of the Supreme Court of New York

Matter of Barnes v. Venettozzi

141 A.D.3d 1073, 35 N.Y.S.3d 674

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

DecidedJuly 28, 2016

Docket522473

StatusPublished

Cited by6 cases

This text of 141 A.D.3d 1073 (Matter of Barnes v. Venettozzi) 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. Venettozzi, 141 A.D.3d 1073, 35 N.Y.S.3d 674 (N.Y. Ct. App. 2016).

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Opinion

*1074 Appeal from a judgment of the Supreme Court (McKeighan, J.), entered January 5, 2016 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge a prison disciplinary determination made in May 2015. Supreme Court signed an order to show cause directing petitioner to serve a copy of the signed order to show cause and the papers on which it was granted upon the named respondent and the Attorney General by first class mail. When petitioner failed to comply with the service requirements, respondent moved to dismiss the petition due to lack of personal jurisdiction. Supreme Court granted the motion and dismissed the petition, and this appeal ensued.

We affirm. “It is well settled that an inmate’s failure to serve papers in accordance with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacle to compliance” (Matter of Anderson v Fischer, 112 AD3d 1089, 1090 [2013] [internal quotation marks and citation omitted]; see Matter of Murray v Fischer, 94 AD3d 1300, 1301 [2012], lv denied 19 NY3d 811 [2012]). Here, respondent submitted affidavits establishing that petitioner did not serve a copy of the executed order to show cause and papers in this special proceeding on the Attorney General as directed in the order to show cause. Petitioner has not demonstrated that he complied with the service requirements of the order to show cause or that imprisonment presented an obstacle to doing so. Accordingly, Supreme Court correctly dismissed the petition (see Matter of Rodriguez v Fischer, 117 AD3d 1298, 1298-1299 [2014]; Matter of Anderson v Fischer, 112 AD3d at 1090).

Peters, P.J., Lahtinen, Egan Jr., Devine and Clark, JJ., concur.

Ordered that the judgment is affirmed, without costs.

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*1074 Appeal from a judgment of the Supreme Court (McKeighan, J.), entered January 5, 2016 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge a prison disciplinary determination made in May 2015. Supreme Court signed an order to show cause directing petitioner to serve a copy of the signed order to show cause and the papers on which it was granted upon the named respondent and the Attorney General by first class mail. When petitioner failed to comply with the service requirements, respondent moved to dismiss the petition due to lack of personal jurisdiction. Supreme Court granted the motion and dismissed the petition, and this appeal ensued.

We affirm. “It is well settled that an inmate’s failure to serve papers in accordance with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacle to compliance” (Matter of Anderson v Fischer, 112 AD3d 1089, 1090 [2013] [internal quotation marks and citation omitted]; see Matter of Murray v Fischer, 94 AD3d 1300, 1301 [2012], lv denied 19 NY3d 811 [2012]). Here, respondent submitted affidavits establishing that petitioner did not serve a copy of the executed order to show cause and papers in this special proceeding on the Attorney General as directed in the order to show cause. Petitioner has not demonstrated that he complied with the service requirements of the order to show cause or that imprisonment presented an obstacle to doing so. Accordingly, Supreme Court correctly dismissed the petition (see Matter of Rodriguez v Fischer, 117 AD3d 1298, 1298-1299 [2014]; Matter of Anderson v Fischer, 112 AD3d at 1090).

Peters, P.J., Lahtinen, Egan Jr., Devine and Clark, JJ., concur.

Ordered that the judgment is affirmed, without costs.

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141 A.D.3d 1073, 35 N.Y.S.3d 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-barnes-v-venettozzi-nyappdiv-2016.

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