Morales v. Selsky

278 A.D.2d 603, 718 N.Y.S.2d 234, 2000 N.Y. App. Div. LEXIS 13123

Opinion

Appeal from a judgment of the Supreme Court (Ferradino, J.), entered September 20, 1999 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding by way of an order to show cause signed on February 17, 1999 challenging a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Following petitioner’s failure to serve the Attorney General and respondent with all appropriate papers in accordance with the order to show cause, respondent moved to dismiss based on petitioner’s failure to obtain personal jurisdiction. Supreme Court granted the motion and this appeal ensued.

We affirm. “Failure of an inmate to satisfy the service requirements set forth in an order to show cause requires dismissal for lack of jurisdiction absent a showing that imprisonment presented obstacles beyond his control which prevented compliance [citations omitted]” (Matter of Gittens v Selsky, 193 AD2d 986, 987). Inasmuch as petitioner failed to make such a showing, we find that the petition was properly dismissed (see, Matter of Arce v Eagen, 267 AD2d 520; Matter of Moncrieffe v Goord, 249 AD2d 715).

Mercure, J. P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.