Vargas v. Unger

Appellate Division of the Supreme Court of New York

Vargas v. Unger

29 A.D.3d 1258, 816 N.Y.S.2d 572

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 2006

StatusPublished

Cited by2 cases

This text of 29 A.D.3d 1258 (Vargas v. Unger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vargas v. Unger, 29 A.D.3d 1258, 816 N.Y.S.2d 572 (N.Y. Ct. App. 2006).

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Opinion

Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 3, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding by order to show cause to challenge a determination of the Time Allowance Committee. Supreme Court granted respondents’ motion to dismiss the proceeding for lack of personal jurisdiction on the ground that petitioner failed to serve each respondent as directed in the executed order to show cause. It is well settled that an inmate’s failure to comply with the service directives set forth in an order to show cause requires dismissal of the petition for lack of personal jurisdiction (see Matter of McCants v Travis, 282 AD2d 851 [2001], lv denied 97 NY2d 605 [2001]; Matter of Gittens v Selsky, 193 AD2d 986, 987 [1993]). Although procedural requirements may be relaxed upon a showing that imprisonment presented an obstacle to service beyond the inmate’s control, we are unpersuaded that lack of access to a fully operable copier machine posed such an obstacle (see Matter of Townes v Selsky, 309 AD2d 1106 [2003]; Matter of Gittens v Selsky, supra at 987), especially given that petitioner was able to serve other named respondents to the proceeding. In view of the foregoing, we are precluded from addressing the merits of the petition.

Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 3, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding by order to show cause to challenge a determination of the Time Allowance Committee. Supreme Court granted respondents’ motion to dismiss the proceeding for lack of personal jurisdiction on the ground that petitioner failed to serve each respondent as directed in the executed order to show cause. It is well settled that an inmate’s failure to comply with the service directives set forth in an order to show cause requires dismissal of the petition for lack of personal jurisdiction (see Matter of McCants v Travis, 282 AD2d 851 [2001], lv denied 97 NY2d 605 [2001]; Matter of Gittens v Selsky, 193 AD2d 986, 987 [1993]). Although procedural requirements may be relaxed upon a showing that imprisonment presented an obstacle to service beyond the inmate’s control, we are unpersuaded that lack of access to a fully operable copier machine posed such an obstacle (see Matter of Townes v Selsky, 309 AD2d 1106 [2003]; Matter of Gittens v Selsky, supra at 987), especially given that petitioner was able to serve other named respondents to the proceeding. In view of the foregoing, we are precluded from addressing the merits of the petition.

Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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29 A.D.3d 1258, 816 N.Y.S.2d 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vargas-v-unger-nyappdiv-2006.

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