Opinion
525827
07-26-2018
In the Matter of Michael BUTLER, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.
Michael Butler, Altona, appellant pro se. Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for respondent.
Michael Butler, Altona, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Garry, P.J., McCarthy, Lynch, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (DeBow, J.), entered October 13, 2017 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner, who is currently incarcerated, sought to commence a CPLR article 78 proceeding to challenge a determination revoking his parole and imposing a 30–month time assessment. In connection therewith, Supreme Court signed an order to show cause on March 30, 2017 requiring petitioner to serve respondent as well as the Attorney General with the order to show cause, petition, exhibits and supporting papers by first class mail on or before May 12, 2017. When petitioner failed to do so, respondent moved to dismiss the petition for lack of personal jurisdiction. Supreme Court granted the motion and this appeal by petitioner ensued.
We affirm. "An inmate's failure to serve papers as directed by an order to show cause requires the dismissal of the petition on jurisdictional grounds, absent a showing that imprisonment presented an obstacle to compliance" ( Matter of Watkins v. New York State Dept. of Corrections & Community Supervision, 159 A.D.3d 1252, 1252, 70 N.Y.S.3d 410 [2018] [citation omitted], lv denied 31 N.Y.3d 913, 2018 WL 3149592 [June 27, 2018] ; see Matter of Perez v. Harper, 161 A.D.3d 1472, 1472–1473, 77 N.Y.S.3d 740 [2018] ). In his responding papers, petitioner admitted that he did not comply with the service requirements, but claimed that this was because he was assaulted in prison, resulting in his hospitalization and the loss of unspecified documents. The record reveals, however, that the alleged assault occurred on April 25, 2017, well after the order to show cause was signed, and that petitioner, in fact, submitted certain papers to Supreme Court that were required by the order to show cause on April 11, 2017. In view of this, Supreme Court reasonably concluded that petitioner's failure to comply with the service requirements was not due to obstacles presented by his imprisonment. Therefore, we find no reason to disturb the dismissal of the petition.ORDERED that the judgment is affirmed, without costs.
Garry, P.J., McCarthy, Lynch, Aarons and Pritzker, JJ., concur.