Opinion
No. CV-23-1470
11-27-2024
In the Matter of Paul Davila, Appellant, v. Anthony Rodriguez, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Paul Davila, Stormville, appellant pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Calendar Date: November 8, 2024
Paul Davila, Stormville, appellant pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Aarons, Reynolds Fitzgerald, McShan and Powers, JJ.
Appeal from a judgment of the Supreme Court (Adam W. Silverman, J.), entered July 19, 2023 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner, an incarcerated individual, commenced this CPLR article 78 proceeding challenging a determination, following a tier III prison disciplinary hearing, finding him guilty of violating certain prison disciplinary rules. Pursuant to an order to show cause signed by Supreme Court (Mackey, J.), petitioner was directed to serve the order to show cause and petition with supporting exhibits and affidavits upon respondent and the Attorney General. Respondent moved to dismiss the petition for failure to acquire personal jurisdiction. Having received no opposition from petitioner, Supreme Court (Silverman, J.) granted respondent's motion to dismiss the petition. This appeal ensued.
We affirm. "It is well established that failure of an incarcerated individual to comply with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the incarcerated individual demonstrates that imprisonment presented obstacles beyond his or her control which prevented compliance" (Matter of Albritton v New York State Div. of Parole, 210 A.D.3d 1164, 1164 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; accord Matter of Griffin-Robinson v New York State Dept. of Corr. & Community Supervision, 226 A.D.3d 1246, 1247 [3d Dept 2024]; Matter of Montes v New York State Dept. of Corr. & Community Supervision, 223 A.D.3d 1131, 1132 [3d Dept 2024]). Petitioner's affidavit of service reflects only service on respondent and not on the Attorney General, and petitioner concedes in his reply brief that he did not serve any papers on the Attorney General, as directed in the order to show cause. Given that petitioner did not comply with that order's service directives and did not demonstrate that his imprisonment presented obstacles that precluded his compliance, Supreme Court correctly granted respondent's motion to dismiss (see Matter of Montes v New York State Dept. of Corr. & Community Supervision, 223 A.D.3d at 1132). Petitioner's remaining contentions are not properly before us.
Contrary to petitioner's assertion, the show-cause order did not transfer the proceeding to this Court, nor did such transfer occur automatically based on his opening papers or by operation of law (see CPLR 7804 [g]).
Garry, P.J., Aarons, Reynolds Fitzgerald, McShan and Powers, JJ., concur.
ORDERED that the judgment is affirmed, without costs.