Vera v. Goord

Dec 30, 2004
Versions:13 A.D.3d 994
786 N.Y.S.2d 366
2004 N.Y. App. Div. LEXIS 16193

Appeal from a judgment of the Supreme Court (Bradley, J.), entered December 23, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ 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 certain prison disciplinary rules. Supreme Court granted respondents’ motion to dismiss the petition for lack of personal jurisdiction due to petitioner’s failure to serve the Attorney General as directed in the order to show cause. We affirm.

It is well settled that an inmate’s failure to comply with the service directives set forth in the order to show cause requires dismissal of the petition for lack of personal jurisdiction (see Matter of Gittens v Selsky, 193 AD2d 986 [1993]). While the procedural requirements may be relaxed upon a showing that prison! ^presented an obstacle beyond an inmate’s control (see Matter of Green v Duncan, 10 AD3d 743 [2004]), petitioner’s assertion of insufficient funds in his account does not constitute such an obstacle (see Matter of Adams v Goord, 8 AD3d 845 [2004]; Matter of Hickey v Goord, 3 AD3d 802 [2004]).

Peters, J.P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.