Matter of Rory Dolan v Glenn S. Goord

Matter of Dolan v Goord 2005 NY Slip Op 10166 [24 AD3d 1121] December 29, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Rory Dolan, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1]Appeal from a judgment of the Supreme Court (McNamara, J.), entered July 12, 2004 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 certain prison disciplinary rules. Respondent moved to dismiss the petition on the ground that petitioner failed to timely serve respondent and the Attorney General in accordance with the order to show cause. Supreme Court granted the motion to dismiss the petition and this appeal ensued.

Respondent now withdraws his objection to the timeliness of service based upon the discovery of a second order to show cause apparently issued after it was determined that petitioner was not given sufficient time for service pursuant to the first order to show cause. Inasmuch as respondent was not given an opportunity to submit an answer, we deem it appropriate to remit the matter to Supreme Court (see Matter of Burr v Goord, 290 AD2d 611, 612 [2002], lv dismissed 97 NY2d 749 [2002]; Matter of Ali v Goord, 267 AD2d 520, 521 [1999]).

Cardona, P.J., Crew III, Carpinello, Mugglin and Lahtinen, JJ., concur. [*2]Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court to permit respondent to serve an answer within 15 days of the date of this Court's decision.