Matter of Brown v Fischer

Matter of Brown v Fischer 2016 NY Slip Op 08266 Decided on December 8, 2016 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: December 8, 2016
521359

[*1]In the Matter of WESLEY BROWN, Appellant,

v

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

Calendar Date: October 25, 2016
Before: Egan Jr., J.P., Lynch, Rose, Devine and Clark, JJ.

Wesley Brown, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McCarthy, J.), entered May 18, 2015 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, an inmate, sought to commence this CPLR article 78 proceeding to challenge a prison disciplinary determination. The amended order to show cause that was signed by Supreme Court directed petitioner to serve a copy of the signed order, petition, exhibits and supporting affidavits upon each respondent and the Attorney General by first class mail on or before March 6, 2015. Petitioner failed to serve the required documents upon all respondents and the Attorney General by the return date. As a result, respondents moved to dismiss the petition for, among other things, lack of personal jurisdiction. Supreme Court granted the motion and petitioner now appeals.

We affirm. It is well settled that an inmate's failure to comply with the service requirements set forth in an order to show cause mandates dismissal of the petition absent a demonstration by the inmate that imprisonment presented an obstacle to compliance (see Matter of Barnes v Venettozzi, 141 AD3d 1073, 1074 [2016]; Matter of Rodriquez v Fischer, 117 AD3d 1298, 1298 [2014]). Here, respondents presented affidavits substantiating that service was not effectuated in accordance with the requirements of the amended order to show cause. Petitioner has not submitted contrary proof or even addressed the lack of proper service in his brief. Therefore, Supreme Court properly granted respondents' motion and dismissed the petition (see Matter of Davis v Prack, 136 AD3d 1092, 1093 [2016]; Matter of Anderson v Fischer, 112 AD3d 1089, 1090 [2013]).

Egan Jr., J.P., Lynch, Rose, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.