Matter of Ventura v New York State Dept. of Correctional Servs.

Matter of Ventura v New York State Dept. of Correctional Servs. 2009 NY Slip Op 09350 [68 AD3d 1406] December 17, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Freddy Ventura, Appellant, v New York State Department of Correctional Services, Respondent.

—[*1] Freddy Ventura, Wilton, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 13, 2009 in Greene County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, an inmate, commenced this proceeding by order to show cause issued on December 31, 2008, pursuant to which he was required to serve respondent and the Attorney General with the petition on or before January 16, 2009. Petitioner failed to serve the Attorney General until January 26, 2009 and respondent moved to dismiss the petition. Supreme Court granted the motion and claimant now appeals.

We affirm. "It is well settled that an inmate's failure to comply with the service requirements of an order to show cause will result in the dismissal of the petition unless the inmate demonstrates that obstacles presented by his or her imprisonment prevented compliance" (Matter of Hughes v Dennison, 40 AD3d 1297 [2007] [citation omitted]; see Matter of Thomas v Selsky, 34 AD3d 904, 904 [2006]). Here, petitioner admittedly failed to timely serve the Attorney General and there is no evidence in the record that his imprisonment interfered with his ability to effect proper service. Accordingly, Supreme Court properly dismissed the petition (see Matter of Mathie v Dennison, 39 AD3d 1059, 1060 [2007]).

Peters, J.P., Kane, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.