Matter of Pettigrew v Fischer

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Matter of Pettigrew v Fischer 2013 NY Slip Op 32632(U) September 13, 2013 Supreme Court, Albany County Docket Number: 1239-13 Judge: Jr., George B. Ceresia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPRENIB COURT COUNTY OF ALBANY In The Matter of DAYID PETTIGREW, Petitioner, -against- BRIAN FISCHER (COMMISSIONER), Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # Ol-13-ST4721 Index No.1239- 13 Appearances: David Pettigrew Inmate No. 08-B-0515 Petitioner, Pro Se Coxsackie Correctional Facility 11260 Route 9W P.O. Box 999 Coxsackie, NY 12051 -0999 Eric T. Schneiderman Attorney General State ofNew York Attorney For Respondent The Capitol Albany, New York 12224 (Keith A . Muse, Assistant Attom~y General of Counsel) DECISION/ORDER/.nJDGMENT George B . Ceresia, Jr., Justice The petitioner, an inmate housed at Coxsackie Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review disciplinary determinations dated August [* 2] 7, 2012 and August 8, 2012. The respondent has made a motion dated July 17, 2013, pursuant to CPLR 3211 (a) (8), to dismiss the petition on grounds that petitioner failed to timely serve the order to show cause and petition. The amended order to show cause, dated May 20, 2013, required the petitioner to serve the respondents and the Attorney General with a copy of the order to show.cause and petition on or before June 14, 2013. The respondent has submitted the affidavit ofPatricia E. Dallmann-Weaver, employed by the New York State Department of Corrections and Community Supervision ("DOCCS ") in the Counsel's Office as an Administrative Assistant. Ms. Dallmann-Weaver indicates that whenever papers are served upon Commissioner Brian Fischer's Office or DOCCS the papers are forwarded to designated staff after review by her supervisor, Deputy Counsel Nancy J. Heywood. It is the responsibility of appropriate staff to forward these documents to the Office of the Attorney General, along with a letter requesting representation on behalf of the respondents. Ms. Dallmann-Weaver indicates that she made a search of the files in the Counsel's Office to detennine whether any legal papers relating to the above-captioned action had been served upon the respondents. She indicates that her office received the following documents: on May 2, 2013 an affidavit of ser.dce, an order to show cause; an affidavit in support, an order regarding poor person status, a requst for judicial intervention, a verified petition and supporting papers; and on June 11, 2013 an amended order to show cause. Respondents have also submitted the affidavit ofEvan Schanz, employed in the Office 2 [* 3] of the New York State Attorney General in the Albany ·L itigation Bureau as a Clerk. His responsibilities include making entries in the database maintained in the office of the Attorney General and searching the database. He searched-the computerized database of the Attorney General for information concerning the above-cl".ptfoned action. He found that the Attorney General was not served with a copy of the verified petition and supporting documentation on or before June 14, 2013 as ordered in the amended order to show cause " dated May 20, 2013. On June 11, 2013 the Office of the A.t tomey General received a copy of the amended order to show cause dated May 20, 2013. , . _ . Failure of an inmate to satisfy the service require~~~nts set forth in an 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 1190 [3d Dept., 2011]; Matter of Defilippo v Fischer, 85 AD3d 1421, 1421 [3d Dept., 2011]; Matter of Pettus v New York State Dept. of Corr. Serv., 76 AD3d 1152 [3rd Dept.~ 2010]; Matter ofCiochenda v Department of Correctional Services, 68 AD3d 13'63 (3rd · ept., 2009]; People ex rel. O Holman v Cunningham,73 AD3d 1298, 1299 [3rd Dept., 201 O])._ The petitioner has submitted an affid,avit of service. While the affidavit of service indioates that service of the Article 78 peJition and amended order to show cause was made on Jurit~- 6, 2013, it is notarized on June 5, 2013, the day before he swears he served them. ·This renders the affidavit of service defective and of no probative value (see Matter ofBarnes;)l..Prack, 108 AD3d 894, 895 [3d Dept., 2013]). 3 [* 4] The Court observes that the service requirement.s ofthe order to show cause could not be satisfied through service of papers in a piecemeal fashion. When the amended order to show cause was served, it was necessary to also serve with .?t the petition and all supporting papers. In view of the foregoing,.the Court finds that the ·mnen.ded order to show cause, the petition and supporting papers were not served upon respondent as required in the amended order to show cause. The Court concludes that the petition must be dismissed by reason of the failure of petitioner to comply with the service requirements contained in the order to show cause (see Matter of Gibson v Fischer, supra; Matter of Defilippo v Fischer, supra; Matter of Pettus v New York State Dept. of Corr. Sen:., · Department of Correctional Services, supra; People ~ypra; Matter of Ciochenda v ex rel. Holman v Cunningham, supra). Lastly, the Court observes that the respondent had maqe a motion to dismiss (dated May 21, 2013) in response to the original order to show ·cause dated March 15, 2013. That motion was served on May 23, 2013. As noted, the petitioner applied for and obtained an amended order to show cause on May 20, 2013 to extend the··deadline for service to June 14, 2013. The Courffinds that respondent's initial motion to dismiss dated May 21, 2013 has been abandoned through service of respondent's subsequent motion. Accordingly, it is ORDERED, that respondent's motion to dismiss dated May 21, 2013 is denied as abandoned; and it is 4 [* 5] ORDERED, that respondent's motion to dismiss dated July 17, 2013 be and hereby is granted; and it is ORDERED and ADJUDGED, that the petition be_and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The original the decision/order/judgment is returned to the attorney for_ respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decision/order/judgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is net relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER September l 3 Troy, New York Dated: , 2013 eorge B. Ceresia, Jr. Supreme Court Justice Papers Considered: 1. 2. 3. 4. Order To Show Cause dated, Petition, Supporting Papers and Exhibits Amended Order To Show Cause Dated May 20, 2013 Notice of Motion dated May 21, 2013, Supporting Papers and Exhibits Notice of Motion Dated July 17, 2013, Supp()rting Papers and Exhibits 5

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