Matter of Kroeger v Fischer

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Matter of Kroeger v Fischer 2012 NY Slip Op 30940(U) March 29, 2012 Sup Ct, Albany County Docket Number: 3390-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW Y O M SUPREME COURT COUNTY OF ALBANY In The Matter of ANTHONY P. KROEGER, Petitioner, -againstBRIAN 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 # 01-1 I-ST2958 Index No,3390-11 Appearances: Anthony P. Kroeger Inmate No. 08-B-1220 Petitioner, Pro Se Auburn Correctional Facility 135 State Street Auburn, NY 13021 Eric T. S c h n e i d e m Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (William McCarthy, Assistant Attmey General of Counsel) DECISIONIORDER George B. Ceresia, Jr., Justice The petitioner, an h a t e at Auburn Correctional Facility, has commenced the instant [* 2] CPLR Article 78 proceeding to review a determination denying a grievance. The respondent made a motion pursuant to CPLR 321 I (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, 201 I , 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 1 1. Prior to the September 2,20 1I 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 I 1, was returnable on October 2 1,201 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 compliance (see Matter of Gibson v Fischer, 87 AD3d 1190 [3d Dept., 201 I]; Matter of DeFilippo v Fischer, 85 AD3d 1421, 1421 [3d Dept., 201 11; Matter of Pettus v New York State Dept. of Con. Sew., 76 AD3d 1152 [3d De& 20 lo]; Matter of Ciochenda v Department of Correctional Services, 68 AD3d 1363 [3rdDept., 20091; People ex rel. HoIman v Cunningham,73 AD3d 1298, 1299 [3'd Dept., 20 101). 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. 2 [* 3] Turning to the motion dated October 12,2012, respondent has submitted the affidavit of Patricia E. Dallmann-Weaver, employed by the New York State Department of Corrections and Community Supervision (LLDOCCS ) the CounseI s Office as an in Administrative Assistant. Ms. Dallmann- Weaver indicates that whenever legal papers are served upon Commissioner Brian Fisher s office or DOCCS, thc papers are forwarded to support staff after review by the Deputy Counsel, It is the responsibdity of support staff to forward such papers, together with a letter requesting legal representation in that matter, to the Office of the Attorney General. A copy of the letters requesting legal representation is maintained in CounseX s Officefiles. Ms. DaIlmann-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 rn 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, 201 1. There is no indication whether the amended order to show cause dated August 15,201 1 was sewed. Moreover, i his reply, the n petitioner prettj much acknowledges that the papers were nut timely served. He indicates that 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 3 [* 4] comply with deadlines for service of papers. In this case the Facility business office did not approve the advance until September 7,201 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. Dallrnann-Weaver that DOCCS received a copy of the amended order to show cause, petition and supporting papers on September IS,201 1. While there is no indication with regard to the date when the envelope w s post-marked, it is clear that the papers were received a mere six days after expiration of a 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, 20 1 1 . As such, the Court wiIl 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 I6,20 11 is denied; and it is ORDERED, that the motion to dismiss dated October 12, 20 1 1 is denied; and it is further ORDERED, that the respondent serve and file an answer and supporting papers on 4 [* 5] or before April 20,2012, and re-notice the proceeding in conformity with CPLR 7804 (0; and it is further ORDERED, that h e proceeding will be referred 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 March 2? ,2012 Troy, New York Dated: Supreme Court Justice Papers Considered: I. 2. 3. 4. 5. Order To Show Cause dated June 24,201 1, Petition, SupportingPapers and Exhibits Respondent s Notice of Motion dated August 16, 2011, Supporting Papers and Exhibits Amended Order To Show Cause dated August 15,2012 Respondent s Notice of Motion dated October 12, 201I , Supporting Papers and Exhibits Petitioner s Reply dated October 3 1,201 1 5

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