Opinion
No. 15–0631.
12-02-2015
PEOPLE of the State of New York ex rel. Stanford WILLIAMS, 10A5974, Relator, For a Judgment Pursuant to Article 70 of the Civil Practice Law and Rules, v. Brandon J. SMITH, Superintendent Greene County Facility, Respondent.
Stanford Williams, Relator, pro se. Hon. Eric T. Schneiderman, Attorney General of New York State, Mark G. Mitchell, Esq. Assistant Attorney General, Of Counsel, Albany, Counsel for Respondent.
Stanford Williams, Relator, pro se.
Hon. Eric T. Schneiderman, Attorney General of New York State, Mark G. Mitchell, Esq. Assistant Attorney General, Of Counsel, Albany, Counsel for Respondent.
LISA M. FISHER, J.
Relator is an inmate whom commenced this Article 70 habeas corpus action via Petition sworn on June 25, 2015 against Respondent Brandon J. Smith, Superintendent of Greene County Facility. The Court issued a Writ of Habeas Corpus setting the return date for October 25, 2015, and granting Relator's request for alternative service by Ordering that the “Writ, the Petition, exhibits and any supporting affidavits, by ordinary First Class Mail, upon each named Respondent at their respective address and upon the Attorney General for the State of New York, at the Department of Law, State Capitol, Albany, New York 12224, on or before September 15, 2015[.]” (emphasis removed.) The Court also required Relator to “[s]ubmit all papers upon which he/she is relying, including the Writ and the original proof of service, to the Greene County Courthouse, Supreme and County Clerk's Office, Catskill, New York 12414 at least eight (8) days prior to the return date. Failure to do so will result in dismissal of Petitioner's action.” (emphasis in original.)
Furthermore, the Court's Writ of Habeas Corpus provided the following warning:
PLEASE BE ADVISED, that failure to strictly comply with the terms of this Order will subject your matter to dismissal, including but not limited to dismissal pursuant to CPLR § 3126 for failing to comply with this Order and the well-established precedent. (See Pettus v. Fischer, 72 AD3d 1313, 1314 [3d Dept.2010] [“An 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.”]; see also 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].).
(emphasis in original.)
Now, Respondent seeks to dismiss on various grounds, notably that Relator has failed to obtain jurisdiction over Respondent by failing to comply with the terms of the Writ of Habeas Corpus. Specifically, Respondent notes that Relator only served on the Respondent and Attorney General the signed Writ of Habeas Corpus, the August 25, 2015 Decision and Order granting Relator poor person status, and an affidavit of service sworn to on September 3, 2015. Neither Respondent nor the Attorney General were sent a copy of the Petition and its supporting papers. For these reasons, Respondent argues that the Court should dismiss Relator's action because he has failed to comply with the orders in the Court's Writ of Habeas Corpus.
The Court agrees. 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] ; see also, Gittens v. Selsky, 193 A.D.2d 986, 987 [3d Dept 1993] [noting that the obstacles must be “beyond [the inmate's] control which prevented compliance.”].) The gravamen of a Writ of Habeas Corpus is the functional equivalent of an order to show cause.
Here, Relator 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 Attorney General some of the application papers but not all, i.e., the Petition and supporting papers. (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].) This Court's Order even explicitly warned that failing to serve “all papers upon which [Relator] is relying” would result in dismissal—even citing to multiple cases in support of such warning and dismissal. (See Pettus v. Fischer, 72 AD3d 1313, 1314 [3d Dept.2010] ; 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].)
Furthermore, the Court notes that Relator was also required to “[s]ubmit all papers upon which [he] is relying” to the Greene County Court Clerk's Office at least eight days prior to the return date. It has now been more than 30 days after the return date, and Relator has not submitted the Petition and supporting papers to the Court. The only documents the Court has is a letter from Relator stating his change of address, an unsigned “Affirmation Pursuant to Rule 600.12(C)(2) of the Court” of David Crow, Esq., an unsworn affirmation of service of Davis Crow, and a pink copy of the Parole Revocation Decision Notice for Relator. There is no affidavit or documents explaining the significance of these documents.
As such, there is a jurisdictional defect requiring dismissal of this action for failing to serve the Petition and supporting papers on Respondent and the Attorney General, as well as on the Court.
The Court has not considered Respondent's remaining two arguments as they are rendered academic.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED and ADJUDGED, that Respondent's motion is GRANTED, in its entirety, and the Petition is DISMISSED in its entirety.
This constitutes the Decision/Order/Judgment of the Court. Please note that a copy of this Decision/Order/Judgment along with the original papers are being filed by Chambers with the County Clerk. The original Decision/Order/Judgment 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.