Opinion
2011-09-15
In the Matter of Bennie GIBSON, Appellant,v.Brian FISCHER, as Commissioner of Correctional Services, et al., Respondents.
Bennie Gibson, Coxsackie, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
Appeal from a judgment of the Supreme Court (Meyer, J.), entered February 16, 2011 in Essex County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.
Petitioner, acting pro se, sought to commence the instant CPLR article 78 proceeding challenging a prison disciplinary determination. The order to show cause named a number of parties as respondents and provided that “service of this Order by certified mail, return receipt req. [ sic ] will be deemed sufficient.” Thereafter, petitioner failed to, among other things, serve certain respondents with any papers and serve other respondents with the papers by certified mail. As a result, respondents moved to dismiss the petition for lack of personal jurisdiction. Supreme Court granted the motion and this appeal ensued.
We affirm. It is well settled that an inmate's failure to comply with the service directives set forth in an order to show cause requires dismissal of the petition for lack of personal jurisdiction unless the inmate can demonstrate that obstacles presented
by his or her imprisonment precluded compliance ( see Matter of Chavis v. Goord, 46 A.D.3d 1029, 1030, 846 N.Y.S.2d 922 [2007]; Matter of Vera v. Goord, 13 A.D.3d 994, 786 N.Y.S.2d 366 [2004]; Matter of Townes v. Selsky, 309 A.D.2d 1106, 766 N.Y.S.2d 603 [2003] ). Here, petitioner failed in numerous respects to comply with the service requirements set forth in the order to show cause, and he has not demonstrated that his imprisonment prevented him from doing so. Notably, he did not oppose respondents' motion. Consequently, we find that Supreme Court properly granted respondents' motion and dismissed the petition.
ORDERED that the judgment is affirmed, without costs.
MERCURE, J.P., SPAIN, MALONE Jr., McCARTHY and EGAN JR., JJ., concur.