Matter of Barnes v Venettozzi

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Matter of Barnes v Venettozzi 2013 NY Slip Op 31757(U) July 3, 2013 Supreme Court, Albany County Docket Number: 4949-12 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 ofNew York Department of Corrections and Community Service, Respondent, For A Judgment Pursuant to Articfe 78 of the Civil Practice Law and Rules. Supreme Court Albany County M c l e 78 Term ¬ ¬on.George 13. Ceresia, Jr., Supreme Court Justice Presiding RJI # 0 1- 12-ST4063 Index NO. 4949- 12 Appearances : Jessie J. Barnes Inmate No. 0943-2707 Petitioner, Pro Se Upstate Correctional. Facility PO Box 2001 309 Bare Hill Road Malone, NY 12953 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New Yo& 12224 (Laura A. Sprague, Assistant Attorney General of Counsel) DECISION/ORDER George B. Ceresia, Jr., Justice The petitioner, a n - h a t e currently at Upstate Correctional Facility, commenced the above-captionedCPLR Article 78proceeding to review a discipIinarydeterminationin which [* 2] he was found guilty ofviolating prison rules. By notice of motion dated November 15,20 12, the respondent 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 to show cause and petition. The order to show cause required the petitionerto serve the papers on or before October 5,20 12. The petitioner opposed the motion by providing an account of a series of circumstances which he claimed prevented him from timely serving his papers. He indicated that on September 6,20 12 he was transferred out of his institutional residence, Upstate Correctional Facility, to the Ontario County Jail for a re-trial of a criminal action. On September2 I, 20 I2 he was retumedto Upstate Correctional Facility, but did not receive the signed order to show cause until Monday, September 24,2012. On September 25,2012 he sent the papers to the Upstate Correctional Facility law library to make photocopies. He received the papers back on September 28,2012, however one of the correction oficers refused to notarize his papers so that he could mail them out. He claims that he was forced to pack up all his legal papers on September 28,2012 i connection with a temporary transfer to Five Points Correctional n Facility. He indicates that he did not receive his legal papers back until October 3,20 12, but that anotarypublic was not available. In a decision-orderdated February 28,2013, the Court denied the motion to dismiss and granted the petitioner an extension of time, to March 18, 20 13, to serve his papas. The Court subsequentlyreceived a letter from the petitioner dated March 6,2013 i which he indicated that on February 21,2013 he was transferred from n Upstate Correctional Facility to Ontario County Jail for trial, and did not return to Upstate Correctional Facility until March 5,2013. He indicated that as of March 6,20 13 he had not yet received possession of his legal papers. He requested a fourteen day extension of time. 2 [* 3] By order dated April 1,ZO I 3 the Court granted him an extension until Apd I 5,ZO 13 to serve the papers.' At the time the Court signed the April I, 2013 order, the Court was unaware that i n the meantime, the petitioner, by amended notice of motion rehullable on April 1,2013, had made a motion for an extension of time to serve his pagers. The C o r n fmds that the petitioner's motion wets rendered moot by the grant of such relief i the order issued on April n 1,2013. For this reason, the petitioner's motion will be denied. The respondent has made a second motion to dismiss the petition on grounds that the petitioner has failed to s m e the order to show cause, petition and supporting papers. In response, the petitioner indicates that he continues to have problems securing photocopies of his legal papers from the Upstate Correctional Facility Law Library? Failure of an inmate t satisfy the service requirements set forth in a court order o requires dismissal for lack of jurisdiction absent a showing that imprisonment prevented compliance & Matter of Gibson v Fischer, 87 AD3d 1190 [3d Dept., 201 11; Matter of DeFilippo v Fischer, 85 AD3d 1421, 1421 [3d Dept., 20 1 11; Matter of Peths v New York State DeDt. of C m . Sew., 76 AD3d 1152 [3"' Dept,, 20101; Matter of Ciochenda v Department of Correctional Services, 68 AD3d 1363 [3d Dept., 20093; People ex rel. Hohan 'The Court granted the petitioner far more time than he had requested, in order to provide him ample opportunity to serve the papers, 2SpeccificaIIy,he mentions that Law Library personnel failed to make a photocopy of the April 1,207 3 court order. Notably, the Court never directed the petitioner to serve the April I, 20 13 court order on either the Attorney General or the respondent, and its inclusion in the papers which he was required to serve was entirely unnecessary. Thus it created no obstacle to his ability to comply with the Court's order. 3 [* 4] VCunnin&am, 73 AD3d 1298,1299 [3d Dept., 20101). No such showing has been made. On numerous occasions it has been held that an inmate s inability to obtain photocopies of his legal papers does not excuse his failure to timely serve his papers upon the respondent lsee Matter of Thomas v Selskv, 34 AD3d 904, 904-905[3d Dept., 20061; Matter of Vargas v Unm, 29 AD3d 1258,1258 [3rdDept., 20061; 3 AD3d 802, 802-803 [3d Dept., 20041; Matter of Williams v Lacy, 253 AD2d 915,9 16 [3dDept., 19981). In this instance, the petitioner has acknowledged that he did not timely serve the order to show cause, petition and supporting papm. In addition, as noted, he has failed to demonstrate that imprisonment prevented him from doing so. Under the circumstances, the Court finds that the respondent s motion must be granted, and the petition dismissed. Accordingly, it is ORDERED, that petitioner s motion for an extension of time to serve the order to show cause, petition and supporting papers is denied; and it is ORDERED, that respondent s motion to dismiss the petition is granted; and it is ORDERED, that the petition be and hereby is dismissed. This shall constitute the decision and order of the Court, The original decisionlorder is returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisionlorder and delivery of this decisiodorder does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved fiom the applicable provisions of that rule respecting filing, entry and notice of entry. 4 [* 5] I I ENTER 3 July ,2013 Troy, New York Dated: Supreme Court Justice Papers Considered: 4. 5. Order To Show Cause dated September 10,2012, Petition, Supporting Papers and Exhibits Petitioner sAmended Notice of Motion dated March 27,2013, Supporting Papers and Exhibits. Petitioner s Letter dated April 9,20 13 Petitioner s Letter dated April 15,2013 Respondent s Notice of Motion dated April 16,20 13, Supporting Papers 6. and Exhibits Petitioner s Affidavit in Opposition sworn to April 23,20 13 and Exhibits 1. 2. 3. 5

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