Smith v. New York County District Attorney's Office

104 A.D.3d 559, 960 N.Y.S.2d 646

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Larry Stephen, J.), entered on or about October 10, 2012, which directed respondent-appellant to appear as a witness to testify in a criminal proceeding in an Indiana court, unanimously reversed, on the law, without costs, the petition denied and the special proceeding brought pursuant to CPL 640.10 dismissed.

The New York District Attorney’s Office concedes that its failure to serve respondent as directed by its order to show cause, which required service of the papers supporting the order, resulted in a lack of personal jurisdiction over respondent (see CPLR 403 [d]; 2214 [d]). Accordingly, denial of the petition and dismissal of the proceeding is warranted (see Matter of Ruine v Hines, 57 AD3d 369 [1st Dept 2008]; Matter of Feldman v Feldman, 54 AD3d 372, 373 [2d Dept 2008]). Concur — Tom, J.P, Mazzarelli, Saxe, Moskowitz and Manzanet-Daniels, JJ.