Matter of Kroeger v Fischer
2012 NY Slip Op 30912(U)
April 4, 2012
Supreme Court, Albany County
Docket Number: 3990-11
Judge: George B. Ceresia Jr
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STATE OF NEW YORK
SUPREME COURT
COUNTY OF ALBANY
In The Matter of ANTHONY P. KROEGER,
Petitioner,
-against-
BRIAN FISCHER, COMMISSIONER, NYSDOCS,
Respondent,
For A Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
Supreme Court Albany County Article 78 Term
Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding
RJI # 0 1-11-ST2958 Index No. 3990-1 I
Appearmces :
Anthony P. Kroeger
Inmate No. 08-B- 1220
Petitioner, Pro Se
Auburn Correctional Facility
135 State Street
Auburn, W 13021
Eric T. Schneiderman
Attorney General
State of New York
Attorney For Respondent
The Capitol
Albany, New York 12224
(William McCarthy,
Assistant Attorney General
of Counsel)
AMENDED
DECISIONIORDER'
'The DecisiodOrder has been amended to indicate the correct index number of the
proceeding, 3990-1 1.
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George B. Ceresia, Jr., Justice
The petitioner, an inmate at Auburn Correctional Facility, has commenced the instant
CPLR Article 78 proceeding to review a determination denying a grievance. The respondent
made a motion pursuant to CPLR 321 1 (a) (8) to dismiss the petition on grounds that the
petitioner failed to timely serve the order to show cause and petition upon the respondent and
the New York State Attorney General. The order to show cause, dated June 24, 2011,
required the petitioner to serve the respondents and the Attorney General with a copy of the
order to show cause, petition and supporting papers on or before July 22,20 11. Prior to the
September 2,201 1 return date, the petitioner applied for, and was granted, an amended order
to show cause. The amended order to show cause, dated August 15,20 1 1, was returnable
on October 2 1,20 I 1. It directed that the petitioner serve the amended order to show cause,
petition and supporting papers on or before September 9,20 1 1.
Failure of an inmate to satisfy the service requirements set forth in an order to show
cause requires dismissal for Lack of jurisdiction absent a showing that imprisonment
prevented compIiance (see Matter of Gibson v Fischer, 87 AD3d I 190 [3d Dept., 20 111;
Matter o f DeFilippo v Fischep, 85 AD3d 1421, 1421 [3d Dept., 201 11; Matter of Pettus v
New York State Dept. of Con.Sew., 76 AD3d 1152 [3d Dept., 20101; Matter of Ciochenda
v Department of Correctional Services, 48 AD3d 1363 [3rdDept., 20091; People ex rel.
Holman v Cunnin&am,73 AD3d 1298, 1299 [3' Dept., 20 lo]).
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With regard to the initial motion to dismiss, the Court finds that the amended order
to show cause supplanted the original order to show cause. As such, the Court finds that the
first motion to dismiss must be denied as moot.
Turning to the motion dated October 12,20 12, respondent has submitted the affidavit
of Patricia E. Dallmann-Weaver, employed by the New York State Department of
Corrections and Community Supervision ((‘DOCCS’’) in the Counsel’s Office as an
Administrative Assistant. Ms. Dallmann-Weaver indicates that whenever legal papers are
served upon Commissioner Brian Fisher’s office or DOCCS, h e papers are forwarded to
support staff after review by the Deputy Counsel. It is the responsibility of support staff to
forward such papers, together with a letter requesting legal representation in that matter, to
the Office of the Attorney Generai. A copy of the letters requesting legal representation is
maintained in Counsel’s Office files. Ms. Dallmann-Weaver caused a search of Counsel’s
Office files to determine if any legal papers in the above matter had been received. She
indicates that she found that on September 15,201 1 her office received an amended order
to show cause, an order to show cause, affidavit in support, an order, a verified petition and
a request for judicial intervention.
The petitioner has submitted an affidavit which indicates that he served an order to
show cause and petition (together with other documents) by mail, addressed to respondent
Fisher and the Attorney General on August 3 1,2011. There is no indication whether the
amended order to show cause dated August I5,20 1 1 was served. Moreover, in his reply, the
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petitioner pretty much acknowledges that the papers were not timely served. He indicates
lhat because he has no money (due to encumbrances placed on his inmate account) he must
go through a lengthy, time-consuming process to apply for advances for postage in order to
comply with deadlines for service of papers. In this case the Facility business office did not
approve the advance until September 7,20 1 1. He requests that if the Court finds service of
the amended order to show cause was untimely, that he be granted an extension of time to
serve the papers.
As noted, it appears from the affidavit of Patricia E. Dallmann-Weaver that DOCCS
received a copy of the amended order to show cause, petition and supporting papers on
September 15,20 1 1. While here is no indication with regard to the date when the envelope
was post-maxked, it is clear that the papers were received a mere six days after expiration of
the deadline for service by mail. The Court finds that petitioner’s request for an extension
of time to serve the amended order to show cause, petition and supporting papers should be
granted pursuant to CPLR 2004. Because it would serve no useful purpose to direct that the
petitioner re-serve the papers, the Court will grant the extension nunc pro tunc to and
including September 15, 201 1. As such, the Court will deny the motion and direct the
respondent to serve an answer. The Court will also direct the respondent to re-notice the
proceeding in accordance with CPLR 7804 (f).
Accordingly, it is
ORDERED,that the motion to dismiss dated August 16,201 1 is denied; and it is
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ORDERED, that the motion to dismiss dated October 12, 20 1 I is denied; and it is
ORDERED, that the respondent serve and file an answer and supporting papers on
or before April 20,20 12, and re-notice the proceeding in conformity with CPLR 7804 (0;
and it is further
ORDEIIED, that the proceeding will be rcferrecl to the undersigned for disposition.
This shall constitute the decision, Order and judgment of the Court. All papers will
be retained by the Court until final disposition of the proceeding.
ENTER
Dated:
Apri1 4 ,2012
Troy, New York
George B. Ceresia, Jr.
Supreme Court Justice
Papers Considered:
1.
2.
3.
4.
5.
Order To Show Cause dated June 24,20 1I, Petition, Supportingfapers and Exhibits
Respondent’s Notice of Motion dated August 15, 201 1, Supporting Papers and
Exhibits
Amended Order To Show Cause dated August 15,2012
Respondent’s Notice of Motion dated October 12, 2011, Supporting Papers and
Exhibits
Petitioner’s Reply dated October 3 1,2011
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