People of State of New York ex rel. Mitchell Planter v Joseph Mc Coy

People ex rel. Planter v McCoy 2003 NY Slip Op 18704 [1 AD3d 1012] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

The People of State of New York ex rel. Mitchell Planter, Appellant,
v
Joseph McCoy, as Superintendent of Cayuga Correctional Facility, et al., Respondents.

— Appeal from a judgment (denominated order) of Supreme Court, Cayuga County (Corning, J.), entered October 21, 2002, which dismissed the petition seeking a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. We agree with petitioner that he properly commenced this special proceeding by filing the notice of petition and petition with the clerk of the court (see CPLR 304; Matter of Grant v Senkowski, 95 NY2d 605, 608-610 [2001]), and thus the court erred in determining that the proceeding was not properly commenced because petitioner failed to serve respondents and the Attorney General with the order to show cause issued thereafter by the court. The court directed that the order to show cause, petition and supporting affidavit be served on respondents and the Attorney General by regular mail. Petitioner's failure to serve those documents as directed in the order to show cause, however, deprived the court of personal jurisdiction over the parties, and "this fatal jurisdictional defect requires dismissal of the proceeding" (Matter of Bottom v Murray, 278 AD2d 817, 817 [2000]; see CPLR 3211 [a] [8]). Present—Pigott, Jr., P.J., Green, Scudder, Kehoe and Hayes, JJ.