Opinion
No. 5746–14.
02-26-2015
In the Matter of the Application of Tamale HARRIS, Petitioner, v. Albert PRACK, et al., Director Special Housing/Inmate Disciplinary Program, Respondent.
Tamale Harris, Pro Se Petitioner. Hon. Eric T. Schneiderman, Attorney General of New York State, (Adrienne J. Kerwin, Esq. Assistant Attorney General, Of Counsel), Albany, Counsel for Respondent.
Tamale Harris, Pro Se Petitioner.
Hon. Eric T. Schneiderman, Attorney General of New York State, (Adrienne J. Kerwin, Esq. Assistant Attorney General, Of Counsel), Albany, Counsel for Respondent.
LISA M. FISHER, J.
Petitioner, an inmate in the care and custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this CPLR Article 78 proceeding to challenge the disciplinary action taken against Petitioner on July 29, 2014 and expunge it from his record. Petitioner brought this action via Order to Show Cause requesting alternative service by mail because he is incarcerated. Supreme Court (Connolly, J.), relaxed the service requirements and granted such request by ordering service “by ordinary First Class Mail, upon each named respondent at their respective address and the Attorney General for the State of New York, at the Department of Law, State Capital, Albany, New York 12224[.]”
Petitioner served the papers upon Respondent and the Albany County Supreme Court Clerk. The Attorney General was not served with the papers. Respondent, in turn, moved to dismiss the Petition for lack of personal jurisdiction.
Section 7804 (c) of the CPLR governs procedure for the time for service of the notice of petition and answer, and mandates service upon the attorney general in proceedings against a state body or officers. CPLR § 2214(d) similarly requires service of an order to show cause in an action against a state body or officers upon the attorney general. A court is afforded some flexibility regarding service, and “[r]elaxation of the rules respecting service of process to enable prison inmates to obtain jurisdiction is not inappropriate where imprisonment presents obstacles to service which are beyond the inmate's control.” (See Alevras v. Chairman of New York Bd. of Parole, 118 A.D.2d 1020, 1021 [3d Dept.1986] appeal dismissed 68 N.Y.2d 753 [1986].) “However, when those rules have been eased, jurisdiction is not acquired unless those service requirements capable of being met have been satisfied.” (Alevras, 118 A.D.2d at 1021.)
As such, it is well-settled that “[a]n inmate's failure to comply with the service requirements of an order to show cause mandates the dismissal of the petition absent a showing that obstacles presented by his or her imprisonment prevented compliance.” (Pettus v. Fischer, 72 AD3d 1313, 1314 [3d Dept.2010] ; see Matter of Ventura v. New York State Dept. of Correctional Servs., 68 AD3d 1406, 1406–07 [3d Dept.2009] ; Matter of Mathie v. Dennison, 39 AD3d 1059, 1060 [3d Dept.2007] .)
Here, Petitioner has not shown that obstacles presented by his imprisonment prevented him from complying with the service requirements as he had no problem serving Respondent and the Albany County Supreme Court Clerk. (See Murray v. Fischer, 94 AD3d 1300 [3d Dept.2012] [affirming dismissal where the petitioner served only one of the two entities required by the order to show cause].) Supreme Court's order even explicitly provided the exact address Petitioner was to serve the papers upon the Attorney General, but Petitioner failed to do so. The Third Department has affirmed the dismissal of a matter similar to this. (Pettus v. Dept. of Correctional Servs., 76 AD3d 1152 [3d Dept.2010] [finding “that petitioner did not serve the papers upon the Attorney General in accordance with the requirements of the order to show cause, although he had no difficulty effectuating proper service upon [the respondent].”) As such, there is a jurisdictional defect requiring dismissal of this action.
Thereby, it is hereby
ORDERED, that Respondent's motion to dismiss the proceeding is granted; and it is further
ADJUDGED, that the Petition is dismissed and all relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry. The in camera exhibits are being returned to Respondent's counsel.