McCorkle v. Beaver

Mar 3, 2005
Versions:16 A.D.3d 715
790 N.Y.S.2d 300
2005 N.Y. App. Div. LEXIS 2164

Appeal from a judgment of the Supreme Court (McNamara, J.), entered October 1, 2003 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 challenging a determination finding him guilty of violating various prison disciplinary rules. Respondent moved to dismiss the petition on the ground that petitioner failed to serve the Attorney General with a copy of the signed order to show cause as directed. Supreme Court granted respondent's motion and dismissed the petition for lack of personal jurisdiction. This appeal ensued.

We affirm. It is well settled that an inmate's failure to comply with the directives set forth in the order to show cause requires dismissal of the petition for lack of personal jurisdiction (see Matter of Green v Duncan, 10 AD3d 743, 744 [2004], lv denied 4 NY3d 701 [2004]; Matter of Townes v Selsky, 309 AD2d 1106 [2003]). Although procedural requirements may be relaxed upon a showing that prison presented an obstacle beyond the inmate's control, we are unpersuaded by petitioner's contention that the lack of photocopying funds and his confinement in the special housing unit posed such an obstacle (see Matter of Vera v Goord, 13 AD3d 994 [2004]; Matter of McCants v Travis, 282 AD2d 851 [2001], lv denied 97 NY2d 605 [2001]).

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