McGuire v. Goord

294 A.D.2d 719, 741 N.Y.S.2d 750, 2002 N.Y. App. Div. LEXIS 5059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 2002
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered April 9, 2001 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for lack of jurisdiction.

Petitioner was a prison inmate when he commenced this proceeding seeking judicial review of a determination of respondent Commissioner of Correctional Services finding him guilty of violating certain prison disciplinary rules. Supreme Court dismissed the proceeding for lack of personal jurisdiction due to petitioner’s failure to comply with the terms of the order to show cause, which directed him to file an affidavit of service with the court after making timely service of the signed order to show cause and supporting documents on the named respondents and the Attorney General.

Petitioner’s failure to provide Supreme Court with proof of service constituted a violation of the terms and conditions of the underlying order to show cause (see, Matter of Morales v Selsky, 278 AD2d 603, lv denied 96 NY2d 708). As there is no evidence, apart from petitioner’s unsupported assertions, that the conditions of his imprisonment presented obstacles beyond his control that prevented his compliance (see, Matter of Cruz v Goord, 278 AD2d 704; Matter of Burnside v Lacy, 269 AD2d 634), the petition was properly dismissed for lack of jurisdiction.

Mercure, J.P., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.