Torres v. New York State Division of Parole

232 A.D.2d 699, 647 N.Y.S.2d 1018, 1996 N.Y. App. Div. LEXIS 10092

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1996
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 24,1995 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request for parole.

Petitioner commenced this CPLR article 78 by order to show cause challenging respondent’s August 1994 determination denying his request for release on parole. Supreme Court dismissed the petition on the basis that petitioner failed to serve respondent as directed in the order to show cause.

* Based upon our review of the record, we agree. Although petitioner submitted an affidavit of service stating that respondent was served with the petition and supporting documentation on July 9, 1995, the order to show cause directing the timing and manner of service was not signed until August 4, 1995, well after the date of the purported service. In view of this, we find that Supreme Court correctly concluded that service had not been properly effected and dismissed the petition for lack of jurisdiction (see, Matter of Alevras v Chairman of N. Y. Bd. of Parole, 118 AD2d 1020, 1021, appeal dismissed 68 NY2d 753).

Mikoll, J. P., Mercure, White, Casey and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.

Due to administrative error, this case was also assigned to another Supreme Court Justice who rendered a decision on the merits dismissing the petition. No appeal was taken from the judgment entered thereon.