Hickey v. Goord

Jan 29, 2004
Versions:3 A.D.3d 802
770 N.Y.S.2d 904
2004 N.Y. App. Div. LEXIS 878

Appeal from a judgment of the Supreme Court (Benza, J.), entered September 9, 2002 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 finding him guilty of violating prison disciplinary rules by failing to comply with urinalysis testing procedures and refusing a direct order. Supreme Court dismissed the proceeding for lack of personal jurisdiction over respondent given petitioner’s admission that he failed to serve respondent with the petition and supporting papers as directed in the order to show cause. We affirm. “Failure of an inmate to satisfy the service requirements set forth in an order to show cause requires dismissal for lack of jurisdiction absent a showing that imprisonment presented obstacles beyond his [or her] control which prevented compliance” (Matter of Gittens v Selsky, 193 AD2d 986, 987 [1993] [citations omitted]; see Matter of Townes v Selsky, 309 AD2d 1106 [2003]). No such showing has been *803made by petitioner, notwithstanding his assertion that he had insufficient funds for photocopying (see Matter of McCants v Travis, 282 AD2d 851 [2001], lv denied 97 NY2d 605 [2001]).

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