McCants v. Travis

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

Apr 12, 2001

Versions:282 A.D.2d 851

722 N.Y.S.2d 920

2001 N.Y. App. Div. LEXIS 3680

—Appeal from a judgment of the Supreme Court (Bradley, J.), entered September 14, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding seeking to challenge a March 1999 determination denying his request for parole release. Supreme Court granted respondent’s motion to dismiss the petition for lack of personal jurisdiction. This appeal by petitioner ensued.

The record establishes that petitioner failed to serve respondent as directed with a copy of the executed order to show cause. Although procedural requirements may be relaxed where imprisonment presents an obstacle to service that is beyond an inmate’s control (see, Matter of Boomer v Walker, 242 AD2d 801), the lack of funds to photocopy an executed order to show cause does not present such an obstacle to service (see, id.; Matter of Martinez v Coombe, 234 AD2d 825).

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