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

Full title: In the Matter of HAROLD ROSENBERG, Appellant, v. NEW YORK STATE BOARD OF…

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

Date published: Dec 11, 2003

2 A.D.3d 1003 (N.Y. App. Div. 2003)

768 N.Y.S.2d 404

Opinion

92904.

Decided and Entered: December 11, 2003.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered February 5, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Harold Rosenberg, New York City, appellant pro se.

Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

Before: Mercure, J.P., Carpinello, Mugglin, Lahtinen and Kane, JJ.

MEMORANDUM AND ORDER

KANE, J.

Petitioner commenced this CPLR article 78 proceeding to challenge respondent Commissioner of Education's order implementing respondent Board of Regents' determination denying petitioner's most recent application for restoration of his license to practice osteopathic medicine. Supreme Court granted respondents' motion to dismiss for lack of personal jurisdiction based on improper service. We affirm.

Petitioner, proceeding pro se, failed to personally serve any respondents, including the Commissioner. Petitioner attempted to serve the Commissioner by sending through certified mail a notice of petition and exhibits, without the petition. This attempt to effect service upon a state officer or agency was insufficient and jurisdictionally defective (see CPLR 307; 403 [b], [c]; Matter of Dello v. Selsky, 135 A.D.2d 994, 995; see also Matter of Grover v. Wing, 246 A.D.2d 813, 814). In addition, petitioner's failure to personally serve a copy of the notice of petition on the Attorney General's office as required by CPLR 7804 (c) requires dismissal (see Matter of Schanbarger v. Blum, 90 A.D.2d 665, lv denied 58 N.Y.2d 603). Petitioner's attempt to cure this improper service by mailing a copy of the notice of petition to the Attorney General's office was ineffective (see Matter of Schenck v. State Tax Commn., 112 A.D.2d 517, 517). Hence, Supreme Court properly dismissed the petition for lack of personal jurisdiction (see CPLR 3211 [a] [8]).

Mercure, J.P., Carpinello, Mugglin and Lahtinen, JJ., concur.

ORDERED that the judgment is affirmed, without costs.