Matter of Barnes v Venettozzi

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Matter of Barnes v Venettozzi 2013 NY Slip Op 30730(U) February 15, 2013 Supreme Court, Albany County Docket Number: 4944-12 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of JESSIE J. BARNES, Petitioner, -againstDON VENETTOZZI, Acting Director Special Housing Unit State of New 'YorkDepartment of Corrections and Community Service, Respandent, For A Judpent Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 T m Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RTI ## 01-12-ST4062 Index No. 4944-12 Appearances: Jessie J. Barnes Inmate NO.09-B-2707 Petitioner, Pro Se Upstate Correctional Facility Eric T. Schneiderman Attorney G e n d State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Gregory J. Rodriguea, Assistant Attorney G e n d of Counsel) DECISIONlORDEWJUDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate currentZy at Upstate Correctional Facility, commenced the above-captioned CPLR Article 78proceedingto review a disciplinary determinationin which he was found guilty of violating prison -rules. Respondent has made a motion pursuant to CPLR 321 1(a) (8) to dismiss the petition on grounds that the petitioner failed to timely serve the order E show cause and petition. The order to show cause, dated September 10,2012, o [* 2] required the petitioner to serve the respondent and the Attorney General with a copy ofthe order to show cause and petition on or before October 5,. 2012. The respondent has submitted the affidavit of Jessica Norton, a keyboard specialist employed in the Office of Special Houshghnate Disciplinary Program of the Department of Corrections and Cornunity Supervision ( DOCCSJ ). Ms. Norton indicates that the Office of Special Housing maintains records concerning receipt of al legal papers served upon its employees. Ms. Norton, who is fully familiar with die office procedure and practice concerning such records had the records reviewed for the time period between October I, 2012 to November 15,2012. She found that during that period, the Office of Special Housing was not served with an order to show cause, petition or any other legal papers i this n matter. Failure of an inmate to satisfy the service requirements set forth in m order to show cause requires dismissal for lack of jurisdiction absent a showing that imprisonment prevented compliance (see Matter of Gibson v Fischer, 87 AD3d I 190 [3d Dept., 201I]; Matter of DeFilimo v Fischer, 85 AD3d 1421, 1422 [3d Dept., 20111; Matter of PeMrs v New York State Dept. ofCorr. Sew., 76 AD3d 1 152 [3d Dept., 20 lo]; Matter of Ciochenda - v Deuartment of Correctional Services, 68 AD3d 1363 [3rdDept., 20091; People ex rel. Hohan v Cunnin&m,73 AD3d 1298,1299 [3d Dept., 20 IO1). No such showing has been made. Petitioner did not oppose the motion, and thus has not controvertedthe respondent s denial of service (s Davis v Evans, 97 AD3d 857,858 [3d Ilept., 20121). No affidavits of service have been submitted. The petitioner opposes the motion, arguing that his confinement prevented him fiom No mention is made of a search for the time period befsveen September 10,2012 to September 30,2012. [* 3] complying with the service requirements of the order to show cause. Specifically, he indicates that on September 6,ZO 12 he was transferred out of Upstate CorrectionaI Facility to the Ontario County fail for a re-trial o f a criminal action. He was returned to Upstate Correctional Facility on September 2 1,2012, but did not receive the signed order to show cause until Monday, September 24,ZO 12. On September 25,20 12 he sent the papers to the Upstate Correctional Facility Iaw library to make photocopies. He received the papers back on September 28,20 12, however one of the correction officers refused to notarize his papers so that he could mail them out. He claims that he was forced to pack up d his legal papers on l September 28,20 12 to go to Five Points Correctional Facility. He indicates that he did not receive his legal papers back until October 3,20 12, but that a notary public was not avaiIabIe. He maintains that on October 3,20 12 he sent a letter to the Court indicating that he was unable to serve hiis papers before the October 5,20 12 deadline.* He requests that the Court grant an extension of time to serve his papers upon the respondent. Mindful that CPLR 2004 authorizes the Court to extend the time for doing any act, The petitioner actually submitted two affidavits in opposition to the motion containing similar, but not duplicate languagee, both sworn to on November 24,2012. I one affidavit, n paragraph 8 recites: The petitioner was forced to pack up papers in his property on September 28,2012 at Upstate Corn. Fac. and did not receive his property at Five Pts. Con. Fac. til Oct. 3,2012 and no notary services were available. In the other affidavit paragraph 8 recites: The petitioner was forced to pack up papers in his property on September 28,2012 at Upstate Con. Fac. and did not receive his property at Five Points Cor, Fa.til [sic] October 3,2012 and the bag containing the documents for this petition was misplaced in Downstate draft area,that did not arrive there at Five Pts. Con. Fac. Until Oct. 11 2012 when the petitioner was in the drafted area awaiting retum to Upstate. e, 3 [* 4] whether the application is made before or after the expiration of the deadline, the Court finds that the petitioner has demonskated sufficient cause to authorize the grant of an extension of t h e . Under the circumstances, the Court will deny the motion, and grant petitioner an extension of time to serve his papers upon the respondent. Accordingly, it is ORDERED,that respondent s motion is denied; md it is ORDERED, that petitioner is granted an extension of time to serve his papers; and it i further s ORDERED, that the petitioner shall serve a copy of this order, the petition, exhibits and supporting affidavits, by ordinary first class mail, upon the respondent and upon the Attorney General of the State ofNm York, at the Departmat of Law, State Capitol, Albany, New York, on or before March 11,2013; and it is further ORDERED, that petitioner shall, within ten (IO) days of such service, submit an affidavit of service of said papers to the Court and the Attorney General; and it is ORDERED, that respondent shall serve and file an answer to the petition within twenty (20) days of the date of service of petitioner s papers, as set forth above; and it is further ORDEmD, that respondentre-notice the proceeding in conformity with CPLR 7804 (0;and it is further . ORDERF,D, that the proceeding be referred to the undersigned for disposition. This will constitute the decision and order of the Court. The Court will retain all papers until final disposition of the instant proceeding. ENTF,R 4 [* 5] & February 6 , 2 0 1 3 Troy, New York Dated: cd I George B. Ceresia, Jr, Supreme Court Justice Papers Considered: 1. 2. 3. Order To Show Cause dated September 10,2012, Petition, Supporting Papers and Exhibits Notice of Motion dated November 15,202 1, Supporting Papers and Exhibits. Petitioner s AEdavit I Opposition, sworn to November 24,2012 (two n copies - not identical) 5

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