Matter of Barnes v Venettozzi

Matter of Barnes v Venettozzi 2016 NY Slip Op 05701 Decided on July 28, 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: July 28, 2016
522473

[*1]In the Matter of ARRELLO BARNES, Appellant,

v

DONALD VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: June 6, 2016
Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Clark, JJ.

Arrello Barnes, Pine City, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McKeighan, J.), entered January 5, 2016 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge a prison disciplinary determination made in May 2015. Supreme Court signed an order to show cause directing petitioner to serve a copy of the signed order to show cause and the papers on which it was granted upon the named respondent and the Attorney General by first class mail. When petitioner failed to comply with the service requirements, respondent moved to dismiss the petition due to lack of personal jurisdiction. Supreme Court

granted the motion and dismissed the petition, and this appeal ensued.

We affirm. "It is well settled that an inmate's failure to serve papers in accordance with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacle to compliance" (Matter of Anderson v Fisher, 112 AD3d 1089, 1090 [2013] [internal quotation marks and citation omitted]; see Matter of Murray v Fischer, 94 AD3d 1300, 1301 [2012], lv denied 9 NY3d 811 [2012]). Here, respondent submitted affidavits establishing that petitioner did not serve a copy of the executed order to show cause and papers in this special proceeding on the Attorney General as directed in the order to show cause. Petitioner has not demonstrated that [*2]he complied with the service requirements of the order to show cause or that imprisonment presented an obstacle to doing so. Accordingly, Supreme Court correctly dismissed the petition (see Matter of Rodriguez v Fischer, 117 AD3d 1298, 1298-1299 [2014]; Matter of Anderson v Fisher, 112 AD3d at 1090).

Peters, P.J., Lahtinen, Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.