Ventura v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York

Ventura v. New York State Department of Correctional Services

68 A.D.3d 1406, 889 N.Y.2d 878

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

DecidedDecember 17, 2009

StatusPublished

Cited by1 cases

This text of 68 A.D.3d 1406 (Ventura v. New York State Department of Correctional Services) 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

Ventura v. New York State Department of Correctional Services, 68 A.D.3d 1406, 889 N.Y.2d 878 (N.Y. Ct. App. 2009).

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Opinion

Petitioner, an inmate, commenced this proceeding by order to show cause issued on December 31, 2008, pursuant to which he was required to serve respondent and the Attorney General with the petition on or before January 16, 2009. Petitioner failed to serve the Attorney General until January 26, 2009 and respondent moved to dismiss the petition. Supreme Court granted the motion and claimant now appeals.

We affirm. “It is well settled that an inmate’s failure to comply with the service requirements of an order to show cause [1407]*1407will result in the dismissal of the petition unless the inmate demonstrates that obstacles presented by his or her imprisonment prevented compliance” (Matter of Hughes v Dennison, 40 AD3d 1297 [2007] [citation omitted]; see Matter of Thomas v Selsky, 34 AD3d 904, 904 [2006]). Here, petitioner admittedly-failed to timely serve the Attorney General and there is no evidence in the record that his imprisonment interfered with his ability to effect proper service. Accordingly, Supreme Court properly dismissed the petition (see Matter of Mathie v Dennison, 39 AD3d 1059, 1060 [2007]).

Peters, J.P, Kane, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Petitioner, an inmate, commenced this proceeding by order to show cause issued on December 31, 2008, pursuant to which he was required to serve respondent and the Attorney General with the petition on or before January 16, 2009. Petitioner failed to serve the Attorney General until January 26, 2009 and respondent moved to dismiss the petition. Supreme Court granted the motion and claimant now appeals.

We affirm. “It is well settled that an inmate’s failure to comply with the service requirements of an order to show cause [1407]*1407will result in the dismissal of the petition unless the inmate demonstrates that obstacles presented by his or her imprisonment prevented compliance” (Matter of Hughes v Dennison, 40 AD3d 1297 [2007] [citation omitted]; see Matter of Thomas v Selsky, 34 AD3d 904, 904 [2006]). Here, petitioner admittedly-failed to timely serve the Attorney General and there is no evidence in the record that his imprisonment interfered with his ability to effect proper service. Accordingly, Supreme Court properly dismissed the petition (see Matter of Mathie v Dennison, 39 AD3d 1059, 1060 [2007]).

Peters, J.P, Kane, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.

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68 A.D.3d 1406, 889 N.Y.2d 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ventura-v-new-york-state-department-of-correctional-services-nyappdiv-2009.

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