Opinion
2012-08-2
Carlton CLARKE, Appellant, v. Joseph T. SMITH et al., Respondents.
Carlton Clarke, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.
Carlton Clarke, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.
Before: MERCURE, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN JR., JJ.
Appeal from an order of the Supreme Court (Melkonian, J.), entered September 28, 2010 in Ulster County, which granted defendants' motion to dismiss the complaint.
In June 2010, plaintiff, an inmate at Shawangunk Correctional Facility in Ulster County, filed the instant summons and complaint alleging deliberate indifference to his medical care by various prison officials. He thereafter attempted to effect service upon defendants Joseph T. Smith and Chang Lee by way of the institutional mail at Shawangunk, and upon defendant Karen Bellamy via regular mail. Defendants thereafter successfully moved to dismiss the complaint for lack of personal jurisdiction and, upon plaintiff's appeal, we now affirm.
Inasmuch as he failed to either (1) personally deliver the summons to defendants, or (2) deliver same to defendants by certified mail in conjunction with personal delivery upon an Assistant Attorney General, there can be no question that plaintiff failed to properly serve defendants in the manner required by law ( seeCPLR 307[2]; Hilaire v. Dennison, 24 A.D.3d 1152, 807 N.Y.S.2d 432 [2005] ). Nor can it be said that plaintiff's attempts at service satisfied the alternative requirements of CPLR 312–a. Plaintiff improperly delivered the summons and complaint to Smith and Lee by institutional mail and, with regard to Bellamy, his mailing failed to include the required statements of service and acknowledgments of receipt ( seeCPLR 312–a[a], [d]; Strong v. Bi–Lo Wholesalers, 265 A.D.2d 745, 745, 698 N.Y.S.2d 738 [1999] ). Moreover, plaintiff's later attempts to correct service were ineffectual due to his failure to include the summons and complaint in his mailings to defendants ( seeCPLR 312–a[a] ). We note in conclusion that “[w]hen the requirements for service of process have not been met, it is irrelevant that [the] defendant may have actually received the documents” ( Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389 [1986] ), because “[n]otice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court” ( Macchia v. Russo, 67 N.Y.2d 592, 595, 505 N.Y.S.2d 591, 496 N.E.2d 680 [1986];see Matter of Gerdts v. State of New York, 210 A.D.2d 645, 646, 620 N.Y.S.2d 512 [1994],appeal dismissed85 N.Y.2d 856, 624 N.Y.S.2d 374, 648 N.E.2d 794 [1995],lv. denied85 N.Y.2d 810, 629 N.Y.S.2d 724, 653 N.E.2d 620 [1995] ).
Plaintiff's remaining arguments have not been preserved for our review.
ORDERED that the order is affirmed, without costs.