Matter of Guillory v Fischer

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Matter of Guillory v Fischer 2013 NY Slip Op 32640(U) September 16, 2013 Supreme Court, Albany County Docket Number: 6714-12 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 SUPREME COURT COUNTY OF ALBANY In The Matter of PATRJCK GUILLORY, Petitioner, -against- BRIAN FISCHER, 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-ST4287 Index No. 6714-12 Appearances: Patrick Guillory Inmate No. 09-B-0714 Petitioner, Pro Se Wyoming Correctional Facility PO Box 501 Attica, NY 14011 -0501 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Keith A . Muse, Assistant Attorney General of Counsel) DECISION/ORDER/JUDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate at Greene Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review a determination dated November 30, 2012 in which [* 2] he was denied release on parole. The respondent made a motion pursuant to CPLR 32) 1 (a) (8)to dismiss the petition on grounds that petitioner failed to timely serve the order to show cause and petition. The order to show cause, dated December 21, 2012, 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 January 25, 2013. The respondent submitted the affidavit of Patricia E. Dallmann-Weaver, employed by the New York State Department of Corrections and Community Supervision ("DOC CS") in the Counsel's Office as an Administrative Assistant. Ms. Dallmann-Weaver indicated 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, Acting Deputy Counsel Nancy J. Heywood. She indicated that it was the responsibility of appropriate staff to forward these documents to the Office -of the Attorney Generali along with a letter requesting representation on behalf ofthe respondents. -Ms. Dallmann-Weaver indicated 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 indicated that her office received a request for judicial intervention, a petition (without verification), and an affidavit in support of the order to show cause. As ofFebruary 22, 2013 however, no order to show cause had been received. Respondent also submitted the affidavit of Danny McDonald, a clerk in the Office of 2 [* 3] the Attorney General. In his affidavit, Mr. McDonald indicated that the office of the Attorney General, in the regular course of business, maintains a database to record receipt of pleadings and papers served on the Attorney General. His responsibilities include making entries into the database and searching the database for information on litigation matters. Mr. McDonald further indicated that he searched the database maintained in the office of the Attorney General for information concerning the above-captioned matter, and found that the Attorney General's Office received a copy of the petition verified on December 8, 2012 and supporting papers. The office of the Attorney General was not served however, with a copy of the order to show cause on or before January 25, 2013. Failure of an inmate to satisfy the service requirements 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 ofDeFilippo v Fischer, 85 AD3d 1421, 1421 [3d Dept., 2011); Matter of Pettus v New York State Dept. of Corr. Serv., 76AD3d 1152 [3rd Dept., 2010]; Matter ofCiochenda v Department of Correctional Services, 68 AD3d 1363 [3rd Dept., 2009]; People ex rel. Holman v Cunningham,73 AD3d 1298, 1299 [3rd D.ept., 2010]). The petitioner filed an affidavit of service which recited thanhe order to show cause, petition and supporting papers were served by mail on January 10, 2013. In his opposing papers the petitioner indicated that if the Court would like .the petitioner to re-serve the papers he "will be happy to do so". 3 [* 4] The Court, in a letter-order dated June 7, 2013 directed the respondent to indicate its position with regard to the foregoing. By letter dated June 12, 2013 1, the respondent consented to the grant of an extension of time to the petitioner to re-serve the papers. Under the circumstances, the Court will deny the motion to dismiss, and will direct the petitioner to re-serve the papers. Accordingly, it is ORDERED, that respondent's motion to dismiss the petition be and hereby is denied; and it is further ORDERED, that the petitioner is granted an extension of time for service of the order to show cause dated December 21, 2012, petition, and all supporting papers to and including October 15, 2013; and it is further ORDERED, that respondent be and hereby are directed to serve and file an answer within twenty (20) days of the date of receipt of the foregoing papers; and it is further ORDERED, that the respondent re-notice the proceeding in conformity with CPLR 7804 (t); and it is further ORDERED, that the proceeding be referred to the undersigned for disposition. This shall constitute the decision and order of the Court. The Court will retain the papers until final disposition of the proceeding. 1 The Court did not initially receive the June 12, 2013 letter, which had to be re-mailed to the Court on July 31, 2013. 4 [* 5] This shall constitute the decision, order and judgment of the Court. The original decision/order/judgment 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 decision/order/judgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER September I~ , 2013 Troy, New York Dated: ~~/'_{!S:::::._:_-~~~:____ _ I~ri&eorge B. Ceresia, Jr. Supreme Court Justice Papers Considered: 1. 2. 3. 4. 5. 6. 7. 8. Order To Show Cause dated December 21, 2012, Petition, Supporting Papers and Exhibits Notice of Motion dated February 28, 2013, Supporting Papers and Exhibits Plaintiff's Opposition to Respondent's Objection Petitioner's Notice of Motion For a Default Judgment Petitioner's Motion To Strike Default Judgment Application Letter of Keith A. Muse, Assistant Attorney General, dated June 12, 2013 Letter of Cassandra R. Maura, Legal Assistant, II dated July 31, 2013 Petitioner's Letter Memorandum dated September 4, 2013 5

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