People ex rel. Planter v. McCoy

Appellate Division of the Supreme Court of New York

People ex rel. Planter v. McCoy

1 A.D.2d 1012, 767 N.Y.S.2d 357, 1 A.D.3d 1012, 2003 N.Y. App. Div. LEXIS 12315

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

DecidedNovember 21, 2003

StatusPublished

Cited by1 cases

This text of 1 A.D.2d 1012 (People ex rel. Planter v. McCoy) 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.

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People ex rel. Planter v. McCoy, 1 A.D.2d 1012, 767 N.Y.S.2d 357, 1 A.D.3d 1012, 2003 N.Y. App. Div. LEXIS 12315 (N.Y. Ct. App. 2003).

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Opinion

Appeal from a judgment (denominated order) of Supreme Court, Cayuga County (Corning, J.), entered October 21, 2002, which dismissed the petition seeking a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. We agree with petitioner that he properly commenced this special proceeding by filing the notice of petition and petition with the clerk of the court (see CPLR 304; Matter of Grant v Senkowski, 95 NY2d 605, 608-610 [2001]), and thus the court erred in determining that the proceeding was not properly commenced because petitioner failed to serve respondents and the Attorney General with the order to show cause issued thereafter by the court. The court directed that the order to show cause, petition and supporting affidavit be served on respondents and the Attorney General by regular mail. Petitioner’s failure to serve those documents as [1013]*1013directed in the order to show cause, however, deprived the court of personal jurisdiction over the parties, and “this fatal jurisdictional defect requires dismissal of the proceeding” (Matter of Bottom v Murray, 278 AD2d 817, 817 [2000]; see CPLR 3211 [a] [8]). Present — Pigott, Jr., PJ., Green, Scudder, Kehoe and Hayes, JJ.

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Appeal from a judgment (denominated order) of Supreme Court, Cayuga County (Corning, J.), entered October 21, 2002, which dismissed the petition seeking a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. We agree with petitioner that he properly commenced this special proceeding by filing the notice of petition and petition with the clerk of the court (see CPLR 304; Matter of Grant v Senkowski, 95 NY2d 605, 608-610 [2001]), and thus the court erred in determining that the proceeding was not properly commenced because petitioner failed to serve respondents and the Attorney General with the order to show cause issued thereafter by the court. The court directed that the order to show cause, petition and supporting affidavit be served on respondents and the Attorney General by regular mail. Petitioner’s failure to serve those documents as [1013]*1013directed in the order to show cause, however, deprived the court of personal jurisdiction over the parties, and “this fatal jurisdictional defect requires dismissal of the proceeding” (Matter of Bottom v Murray, 278 AD2d 817, 817 [2000]; see CPLR 3211 [a] [8]). Present — Pigott, Jr., PJ., Green, Scudder, Kehoe and Hayes, JJ.

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1 A.D.2d 1012, 767 N.Y.S.2d 357, 1 A.D.3d 1012, 2003 N.Y. App. Div. LEXIS 12315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-planter-v-mccoy-nyappdiv-2003.

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