From Casetext: Smarter Legal Research

Matter of Dello v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Dec 23, 1987
135 A.D.2d 994 (N.Y. App. Div. 1987)

Opinion

December 23, 1987

Appeal from the Supreme Court, Albany County (Kahn, J.).


Petitioner seeks review of a disciplinary determination and an order denying his application for permission to proceed as a poor person under CPLR article 11. Petitioner's notice of petition, petition and motion papers were served on respondents by mail only. Respondents moved to dismiss for lack of personal jurisdiction; Supreme Court granted the motion and denied petitioner's application under CPLR article 11. This appeal by petitioner followed.

It is axiomatic that service by mail, absent issuance of an order to show cause authorizing service by mail in lieu of personal service, is jurisdictionally defective (CPLR 403 [c], [d]; 7804 [c]; Matter of Scott v Coughlin, 111 A.D.2d 480, lv denied 65 N.Y.2d 606). Inasmuch as more than four months have passed since the challenged acts and determinations have become final, and the applicable Statute of Limitations for CPLR article 78 proceedings has expired (see, CPLR 217), there is no reason to remit this matter for an order to show cause (see, Matter of Scott v Coughlin, supra). In this regard, we find nothing in petitioner's submissions, unlike those presented in Matter of Hanson v Coughlin ( 103 A.D.2d 949) and Matter of Davis v Coughlin ( 96 A.D.2d 682), to warrant their treatment as an application to permit alternative service (see, Matter of Scott v Coughlin, supra). Furthermore, although an application under CPLR article 11 can be made prior to commencement of an action, we find no error in the denial of petitioner's application thereunder, especially considering petitioner's inability to maintain his allegations in timely fashion.

Judgment affirmed, without costs. Kane, J.P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.


Summaries of

Matter of Dello v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Dec 23, 1987
135 A.D.2d 994 (N.Y. App. Div. 1987)
Case details for

Matter of Dello v. Selsky

Case Details

Full title:In the Matter of LEONARD DELLO, Appellant, v. DONALD SELSKY, as Director…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 23, 1987

Citations

135 A.D.2d 994 (N.Y. App. Div. 1987)

Citing Cases

Johnson v. Aarone-Beane

Notably, the statutory language gives the Court discretion to grant or deny the application. A Court may deny…

Rosenberg v. N.Y. State Bd., Regents

Petitioner, proceeding pro se, failed to personally serve any respondents, including the Commissioner.…