Van Bramer v. Selsky

293 A.D.2d 901, 740 N.Y.S.2d 249, 2002 N.Y. App. Div. LEXIS 3806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 2002
• Status: Published

Opinion

Peters, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Inasmuch as the service of process on the Attorney General authorized by the order to show cause was insufficient to confer personal jurisdiction over respondent, Supreme Court erred in denying respondent’s objection in point of law based on the improper service (see, Matter of Standifer v Goord, 285 AD2d 912; Matter of Taylor v Poole, 285 AD2d 769). Contrary to Supreme Court, we find nothing of substance in this case to distinguish it from our prior cases which rejected this method of service. We also find no merit to the Attorney General’s argument that petitioner is somehow at fault for the improper service directed by Supreme Court’s order to show cause. The appropriate remedy is to reverse the order of transfer and remit the matter to Supreme Court for the execution of an order to show cause which provides for proper service, and we also direct that the time for service of the papers be extended to a new date designated by the court upon remittal (see, id.).

Mercure, J.P., Crew III, Spain and Lahtinen, JJ., concur. Adjudged that the order of transfer is reversed, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.