Matter of Batista v NYS Dept. of Corr. & Community Supervision

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Matter of Batista v NYS Dept. of Corr. & Community Supervision 2012 NY Slip Op 32977(U) December 4, 2012 Sup Ct, Albany County Docket Number: 2628-12 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 HECTOR BATISTA, Petitioner, -against- N Y S DEPARTMENT OF CORRECTIONS AND COMMUNITY SWERVISION (NYS B O m OF PAROLE), 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 # 01-12-ST3646 IndexNo.2628-12 Appearances: Cheryl L. Kates, P.C. Attorney For Petitioner P.O. Box 734 Victor, NY 14564 Eric T. Schneideman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Gregory J. Rodriguez, Assistant Attorney General of Counsel) DECISIONIORDER George B. Ceresia, Jr., Justice The petitioner, an inmate i the custody of the New York State Department of n Corrections and Cornunity Supervision, commenced the instant CPLR Article 78 proceeding to review a determination dated April 5,20 1 1 in which he was deniedrelease on [* 2] parole. Respondent has made a motion pursuant to CPLR 321 1 (a) (8)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 May 8,2012, required the petitioner to serve the respondents and the Attorney General with a copy of the order to show cause and petition on or before May 25,2012. Respondent has submitted the affidavit of Danny McDonald, a clerk in the Office of the Attorney General. In his affidavit, Mr. McDonald indicates that the office of the Attorney General, in the regular course of business, maintains a database to record receipt of pleadings and papers served upon the Attorney General. His responsibilities include making entries into the database and searching the database for information on litigation matters. Mr. McDonald further indicates that he searched the database of the Attorney General for information concerning the above-captionedmatter, and found that on May 14, 20 12 the Attorney General s Office received a copy of the verified petition, memorandum, a request for judicial intervention and supporting affidavits in this proceeding. However, as of June 19,20 12, the Attorney General had not been served with any other documents ixl this matter, including the order to show cause. Respondent has also submitted the affidavit of Robin Fiher, an Administrative Assistant employed in the Counsel s Office of the New York State Department of Corrections and Community Supervision. Fiher indicates that legal mail and court papers addressed to the Chairwoman and Commissioners of the Board of Parole are forwarded to the Counsel s Ofice, where they are included in litigation logs and litigation files. Fiher 2 [* 3] reviewed the ligation log and litigation files. The records indicate that on May 15,2012 the Board of Parole was served with an affidavit i support of order to show cause, affidavit i n n support of motion for poor person status, memorandum of law, and verified petition with exhibits, but without a signed order to show cause. Filmer further avers that as of June 14, 20 12 the Board had not received any additional documents. 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 (seeMatter of Gibson v Fischer, 87 AD3d 1 190 [3d Dept., 20 111; ] 85 AD3d 1421,1421 [3d Dept,, 201 I]; Matter of Pettus v New York State Dept. of Con. Sew.,76 AD3d 1 152 [3d Dept., 20101; Matter of Ciochenda v Department of Correctional Services, 68 AD3d 1363 [3d Dept., 20091; People ex rel. Holman v Cunnin&am, 73 AD3d 1298, 1299 [3d Dept., 20101). Counsel for the petitioner indicates that she believes that the order to show cause was served upon the respondent and the Attorney General. When counsel learned that service was being contested, she re-served the order to show cause by express mail on July 3,20 12. She also contacted the Clerk of the Albany County Supreme Court Clerk s Office to request that the return date be adjourned. Petitioner s counsel made a motion, returnable on July 13, 20 12, for an order granting an amended order to show cause ! order allowing for correction of omission or defect, and dismissal of the motion to dismiss u . As set forth i CPLR 200 1. : n [alt any state of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, [] to be corrected, upon such terms as may be just, 3 [* 4] or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded I]. Although petitioner may have failed to timely serve the signed order to show cause in accordance with its terms, upon becoming aware of the defect, the petitioner made a significant effort, prior to the return date, to correct the error. This included serving a copy of the order to show came by express mail upon the respondent and the Attorney GeneraI. The Court discerns no prejudice to the respondent arising fiom the belated service of the order to show cause. Nor has the delay been shown to be willll. The Court is further mindful of the strong public policy in favor of resolving cases on the merits. Viewed either as a motion for an extension of time to serve the order to show cause, or one to disregard the mistake, the Court finds that the motion should be granted &Dinstber v Allstate Ins. CO., 96 AD3d 1198 [3d Dept., ZOIZ]), Under the circumstances, pmuant to CPLR 200 1, the Court finds that respondent s motion should be granted to the extent of authorizing service of the signed order to show cause, nmcpru tunc , to and including July 3,2012, and determining that said document was timely served. Accordingly, it is ORDERED, that respondent smotion to dismiss be and hereby is denied; and it is ORDERXD, that petitioner s motion be granted as set forth herein; and it is - ORDERED, that respondent be and hereby is directed to serve and file an s u l s ~ e r within twenty (20) days of the date hereof; and it is further Under the facts present here, it would serve no useM purpose to direct the petitioner to re-serve the papers. 4 [* 5] ORDERED, that respondent re-noticethe proceeding in conformitywith CPLR 7804 (0;and it is further ORDERED, that the proceeding be referred to the undersigned for disposition. This will constitute the decision and order of the Court. The Court will retain all papers until flnal disposition of the instant proceeding. ENTlER Dated: December # / 1George B.3 Jr. d Ceresia, ,2012 Troy, New York Supreme Court Justice Papers Considered: 1. 2. 3. 4, Petitioner s Order To Show Cause dated May 8,2012, Petition, Supporting Papers and Exhibits Respondent s Notice of Motion dated June 28,20 12, Supporting Papers and Exhibits. Petitioner sNotice of Motion dated July 2,2012, Supporting Papers and Exhibits Petitioner s Reply dated July 2,2012 Not Considered: 1, Ex Parte Letter of Cheryl L. Kates, Esq. dated November 19,2012 labeled New Evidence With Attachments, submitted without permission after the return date. 5

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