Olivera v. Travis

Dec 6, 2001
Versions:289 A.D.2d 655
733 N.Y.S.2d 646
2001 N.Y. App. Div. LEXIS 11653

Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered March 8, 2001 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 denying his request for parole release. Supreme Court granted respondent’s motion to dismiss the petition for lack of personal jurisdiction due to petitioner’s failure to comply with the December 7, 2000 order to show cause, which directed petitioner to serve respondent and the Attorney General by first class mail with the order to show cause, petition and supporting papers on or before a specified date. Affidavits from respondent and the Attorney General establish that neither has a record of being served with a signed order to show cause or other necessary papers. Inasmuch as petitioner failed to comply with the service directives set forth in the order to show cause, and there being no indication that imprisonment presented an obstacle beyond his control that prevented compliance, we conclude that the petition was properly dismissed (see, Matter of Cruz v Goord, 278 AD2d 704; Matter of Morales v Selsky, 278 AD2d 603, lv denied 96 NY2d 708).

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