Matter of Young v Prack

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Matter of Young v Prack 2012 NY Slip Op 31693(U) June 5, 2012 Sup Ct, Albany County Docket Number: 7025-11 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 YORK SUPREME COURT COUNTY OF ALBANY In The Matter of CARL YOUNG, Petitioner, -against- ALBERT PMCK, DIRECTOR OF SPECIAL HOUSING UNIT I INMATE DISCIPLINARY PROGRAM FOR THE N Y S DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent, For A Judgment Pursuant to Article 78 of the CiviI Practice Law and Rules. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-12-ST3293 Index No. 7025-1 1 Appearances: CmI Young Inmate No. 97-A-269 1 Petitioner, Pro Se Wende Correctional Facility Wende Road P.O. Box 1187 AIden, NY 14004-1187 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Brian J. O DonnelI, Assistant Attorney Genera1 of Counsel) DECISTONIORDERIJUDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate at Wende Correctional Facility, has commenced the instant [* 2] CPLR Article 78 proceeding to review a disciplinary determination in which he was found guilty of vioIating prison rules. The respondent has made 2 motion pursuant to CPLR 7804 (c)to dismiss the petition on grounds that petitioner failed to timely serve the order to show cause and petition. The order to show cause, dated December 12, 201 1, required the petitioner to serve the respondent and the Attorney General wih a copy of the order to show cause and petition on or before January 6,20 12. In an affidavit submitted in support of the motion, respondent Albert hack indicates that the Office of Special Housing and Inmate Diseiplinary Programs maintains a computerized database to record the receipt of all papers served upon that office, and its employees, in legal proceedings. He indicates that he caused a review to be made of records ofthe Office of SpeciaI Housing and Inmate Disciplinary Programs to determine whether the petitioner effected service of the order to show cause and supporting papers on or before the January 4,2012 deadline set forth i the order to show cause. As a result of the foregoing n review, he determined that his office was served with the following documents: an incomplete afidavit of service notarized on January 4, 20 12, a memorandum of law, a verified petition, an affidavit in support of order to show cause, a document entitled reconsideration request for an appeal, respondent Prack s letter dated September 26,20 1I, and an affidavit of service dated October 27,20 I 1. NotabIy, he was not served with a copy of the order to show cause dated December 12,20 11. The respondent has also submitted the affidavit of Shane Bouchard, a clerk in the Ofice ofthe Attorney General. In his aEdavit, Mr. Rouchard indicates that the office of the Attorney General, in the reguIar course of business, maintains a database to record receipt 2 [* 3] of pleadings and papers served upon the Attorney General. Mr. Bouchard's responsibilities include making entries into the database and searching the database for infomation on litigation matters. Mr. Bouchard indicates that he searched the database of the Attorney General for infomation concerning the above-captioned matter, and found that on January 9, 2012 the Attorney General's Office received the foll.owing documents: an incomplete affidavit of service notarized on January 4,20 1 2, a memorandum of law, a verified petition, a affidavit in support of order to show cause, a reconsiderationrequest for an appeal, a copy n of Albert Prack's letter of September 26,20 1 1, an August 25,20 I 1 appeal with exhibits, and an affidavit of service dated October 27, 201 I. Mr Rouchard further indicates that as of February 8,20 12, the office of the Attorney General had not been served with a copy of the order to show cause. The petitioner argues that his confinement in the special housing unit hampered his ability to timely serve the papers. Notwithstanding this argument, he has also submitted an affidavit of service, notarized on January 4,20 12, which indicates that the petition, affidavit and supporting papers were served. 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 1 190 [3d Dept., 201 11; Matter of DeFilippo v Fiscker, 85 AD3d 1421, 1421 [3d Dept., 201 I]; 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, 68 AD3d 1363 [3rd Dept., 20091; People ex rel. Holman v Cunnin~ham,73 AD3d 1298,1299 [3' Dept., 20 IO]). No such showing has been 3 [* 4] made. It is well settled that confinement in a special housing unit does not qualify as a hardship with regard to the timely service of papers (see Matter of Short v Goord, 37 AD3d 925,925-926 [3rdDept., 20071). The fact that the petition and supportingpapers were timely served undercuts petitioner's argument that he was unable to timely serve the order to show cause. In view of the foregoing, the Court finds that the order to show cause was not served upon respondent or the Attorney General as required in the order to show cause. The Court concludes that the petition must be dismissed, by reason of the failure of the petitioner to comply with the service requirements contained in the order to show cause (see,Matter of Gibson v Fischer, supra; Matter of DeFilippo v Fischer, supra; Matter of Pettus v New York State Dept. of Con. Sew., supra; Matter of Ciochenda v Department of Correctional Services, supra; Peode ex rel. Holman v Cunninham, supra). Accordingly, it is ORDERED, that respondent's motion to dismiss be and hereby is granted; and it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The original decisiodorderljudgrnent is returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisionlordedjudgrnent and delivery of this decisiodordedjudgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the appIicable provisions of that rule respecting filing, entry and notice of entry. 4 [* 5] / ENTER Dated: June 5 , 2 0 1 2 Troy, New York Supreme Court Justice Papers Considered: 1. 2. 3. Order To Show Cause dated December 12,20 1 1, Petition, Supporting Papers and Exhibits Notice of Motion dated February 10,2012, Supporting Papers and Exhibits Petitioner s Letter Dated February 17,2012 Not Considered: I. Petitioner s Letter Dated April 6,2012 5

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