Opinion
May 9, 1985
Appeal from the Supreme Court, Albany County (Pennock, J.).
Petitioner seeks declaratory, injunctive and other relief for alleged deficiencies in disciplinary matters decided adverse to him, as well as for deficiencies in prison grievance procedures and in other aspects of prison administration. Petitioner served a notice of petition and petition by mail only. Respondents moved to dismiss for lack of personal jurisdiction and Special Term granted the motion. This appeal by petitioner ensued.
Special Term did not err in dismissing the petition because 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 Hanson v. Coughlin, 103 A.D.2d 949). Inasmuch as more than four months have elapsed since the acts and determinations sought to be challenged have become final and the time for commencing a CPLR article 78 proceeding has thus passed (CPLR 217), there is no need to remit to Special Term for an order to show cause ( see, Matter of Watson v. LeFevre, 108 A.D.2d 1067). In this regard, there is nothing in petitioner's moving papers, unlike those submitted by the petitioner's in Matter of Hanson v Coughlin ( supra) and Matter of Davis v. Coughlin ( 96 A.D.2d 682), which can be read as an application to permit alternative service and which would, thus, justify remittal.
Judgment affirmed, without costs. Mahoney, P.J., Main, Weiss, Yesawich, Jr., and Levine, JJ., concur.