Davis v Fischer

Davis v Fischer 2012 NY Slip Op 04044 Decided on May 24, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 24, 2012
512404

[*1]In the Matter of JACK DAVIS, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: April 4, 2012
Before: Peters, P.J., Mercure, Lahtinen, Kavanagh and Garry, JJ.


Jack Davis, Marcy, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondents.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lynch, J.), entered May 23, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner attempted to commence this CPLR article 78 proceeding to challenge various prison disciplinary determinations made between 1989 and 2009. Respondents, in turn, moved to dismiss the petition based upon petitioner's failure to comply with the service requirements set forth in the order to show cause. Supreme Court granted the motion and this appeal ensued.

Absent personal jurisdiction over the parties, this Court is precluded from addressing the merits of the arguments in the petition (see Matter of Wilson v Bezio, 93 AD3d 1053, 1054 [2012]; Matter of Calhoun v Division of Parole, 93 AD3d 1009, 1009-1010 [2012]). Upon reviewing the record, we find no basis to disturb Supreme Court's conclusion that jurisdiction was lacking.

Peters, P.J., Mercure, Lahtinen, Kavanagh and Garry, JJ., concur. [*2]

ORDERED that the judgment is affirmed, without costs.