Spirles v. McGinnis

305 A.D.2d 822, 758 N.Y.S.2d 546, 2003 N.Y. App. Div. LEXIS 5551

Opinion

—Appeal from a judgment of the Supreme Court (Lamont, J.), entered March 4, 2002 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 challenges a determination finding him guilty of violating a prison disciplinary rule. Supreme Court granted respondent’s motion to dismiss the petition for lack of personal jurisdiction and we affirm. An affidavit from the inmate records coordinator at the correctional facility where petitioner is housed states that respondent did not receive a signed order to show cause from petitioner. Furthermore, petitioner neglected to file an affidavit of service with the court as directed in the order to show cause. Notwithstanding petitioner’s assertion to the contrary, there is no evidence that the conditions of his imprisonment presented an obstacle beyond his control that prevented his compliance (see Matter of McGuire v Goord, 294 AD2d 719 [2002]; Matter of Cruz v Goord, 278 AD2d 704 [2000]; Matter of Gittens v Selsky, 193 AD2d 986 [1993]), particularly where the record establishes that the Attorney General was properly served with the appropriate papers. Given petitioner’s failure to comply with the relaxed service requirement set forth in the order to show cause, Supreme Court properly dismissed the petition (see id.).

Mercure, J.P., Crew III, Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.