Montgomery v. Fogg

74 A.D.2d 933, 1980 N.Y. App. Div. LEXIS 10752

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Ulster County), to review a determination of the Department of Correctional Services finding petitioner guilty of violating departmental regulations. Respondents in their answer maintain that personal jurisdiction over them was never obtained since the notice of petition was not properly served. An affidavit made by an Assistant Attorney-General alleges that the only service made in this proceeding was by mail and thus jurisdictionally defective since not in compliance with CPLR 403 (subd [c]). Petitioner’s reply affidavit avers that personal service upon some of the respondents was made. Since service of the notice of petition and petition by mail upon respondents would be insufficient to confer jurisdiction over them (Matter of Greenwaldt v Judges of Albany County CL, 60 AD2d 924; Matter of Harlem Riv. Consumers Coop, v State Tax Comm., 44 AD2d 738, affd 37 NY2d 877) and, further, since the record does not contain a copy of petitioner’s affidavit of proof of service, this, proceeding must be remitted to Special Term for a trial on the issue of service (CPLR 7804, subds [g], [h]). Decision withheld, and matter remitted to Special Term for further proceedings not inconsistent herewith. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Mikoll, JJ., concur.