Opinion
July 24, 1989
Appeal from the Supreme Court, Dutchess County (Nastasi, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the proceeding is dismissed.
The petitioner, an inmate at the Green Haven Correctional Facility, commenced the instant CPLR article 78 proceeding to review the denial of his application for a medical leave of absence to attend a cardiac rehabilitation program under the temporary release program (Correction Law § 851 et seq.). The petitioner failed, however, to personally serve a notice of petition on the respondents and the New York State Attorney-General (see, CPLR 403 [c]; 307 [1]), and similarly failed to seek an order to show cause to authorize his use of service by mail in lieu of personal service (see, CPLR 308; 7804 [c]; Matter of Brown v Scully, 135 A.D.2d 713). The petitioner therefore failed to acquire personal jurisdiction over the respondents, and this fatal jurisdictional defect requires dismissal of this proceeding (see, Macchia v Russo, 67 N.Y.2d 592; Matter of Brown v Scully, supra, at 713; Matter of Dello v Selsky, 135 A.D.2d 994; Matter of Scott v Coughlin, 111 A.D.2d 480). In any event, this proceeding is barred by the four-month Statute of Limitations (see, Matter of Soto v New York State Bd. of Parole, 107 A.D.2d 693, affd 66 N.Y.2d 817). Mangano, J.P., Eiber, Sullivan and Balletta, JJ., concur.