People ex rel. Watson v. Walsh

7 A.D.3d 850, 776 N.Y.S.2d 352, 2004 N.Y. App. Div. LEXIS 6532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2004
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered June 3, 2003 in Sullivan County, which, in a proceeding pursuant to CPLR article 70, granted respondent’s motion to dismiss the petition.

Petitioner commenced this habeas corpus proceeding challenging the failure to allow him to testify on his own behalf at a September 1984 grand jury proceeding. Supreme Court granted respondent’s motion to dismiss the petition for lack of personal jurisdiction, and this appeal ensued.

The record establishes, and petitioner acknowledges, that he failed to comply with the terms of the writ of habeas corpus directing that service of the writ and petition be made upon respondent. Absent a showing that imprisonment presented an obstacle beyond petitioner’s control that prevented his compliance with the service directives (see People ex rel. Planter v McCoy, 1 AD3d 1012 [2003], lv denied 1 NY3d 508 [2004]; Matter of Britt v Goord, 305 AD2d 829 [2003]), Supreme Court properly dismissed the petition for lack of personal jurisdiction. Although petitioner requests that this Court remit the matter to Supreme Court in order for the error to be corrected and a new writ of habeas corpus issued, unlike the cases relied on by petitioner, the error here occurred due to petitioner’s own negligence and not through any misdirection from the court (cf. Matter of Standifer v Goord, 285 AD2d 912 [2001]; Matter of Taylor v Poole, 285 AD2d 769 [2001]).

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ, concur. Ordered that the judgment is affirmed, without costs.