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Anderson v. Fischer

112 A.D.3d 1089 Court N.Y. App. Div. Decision date 2013-12-12 English

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p. 1089
In the Matter of William D. Anderson, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
[976 NYS2d 418]

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered August 29, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a determination by respondent finding him guilty of violating certain prison disciplinary rules. Supreme Court (Platkin, J.) signed an order to show cause directing petitioner to serve the order and the papers upon which it was granted upon respondent and the Attorney General on or before March 30, 2012. When petitioner failed to comply with the service requirements of the order to show cause, respondent moved to dismiss the petition for lack of personal jurisdiction.[1] Supreme Court granted respondent’s motion and dismissed the petition, and petitioner now appeals.

* Petitioner thereafter moved for an extension of time in which to serve the petition and Supreme Court (Melkonian, J.) denied the motion.

p. 1090
We affirm. “It is well settled that an inmate’s failure to serve papers in accordance with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacle to compliance” (Matter of Ciochenda v Department of Correctional Servs., 68 AD3d 1363 , 1363-1364 [2009] [citations omitted]; see Matter of DeFilippo v Fischer, 85 AD3d 1421 , 1421 [2011], lv denied 17 NY3d 711 [2011]). Here, it is undisputed that petitioner failed to serve respondent and the Attorney General in accordance with the order to show cause. Although petitioner contends that the failure was due to the lack of availability of a notary at his facility, he has not presented any evidence in support of this claim. Accordingly, the petition was properly dismissed (see Matter of Encarnacion v LaValley, 89 AD3d 1306 , 1307 [2011]; Matter of Ciochenda v Department of Correctional Servs., 68 AD3d at 1364 ).

Peters, EJ., Rose, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.

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