IN RE: Justo ESTEVEZ–RODRIGUEZ (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Nichols, J.), entered May 9, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding alleging that respondent failed to grant him parole jail time credit for time spent in custody. Pursuant to an order to show cause signed by Supreme Court (Hartman, J.) on January 3, 2019, petitioner was required to serve a copy of the signed order to show cause, together with the petition, exhibits and any supporting affidavits, upon respondent and the Attorney General prior to February 8, 2019. Although there is no dispute that petitioner served respondent with all of the required papers, the papers received by the Attorney General did not include a copy of the signed order to show cause. As a result, respondent moved to dismiss the petition for failure to acquire personal jurisdiction; petitioner opposed the requested relief. Supreme Court (Nichols, J.) granted respondent's motion to dismiss, and this appeal ensued.

We affirm. “An inmate's failure to serve papers in accordance with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacle to compliance” (Matter of Adams v. Annucci, 175 A.D.3d 1687, 1687–1688, 108 N.Y.S.3d 546 [2019] [internal quotation marks, brackets and citations omitted]; see Matter of Simpson v. Annucci, 175 A.D.3d 1694, 1695, 108 N.Y.S.3d 542 [2019]; Matter of Butler v. New York State Div. of Parole, 163 A.D.3d 1381, 1382, 77 N.Y.S.3d 907 [2018], lv denied 32 N.Y.3d 910, 2018 WL 6493562 [2018]). Petitioner does not assert that he was unable to comply with the service requirements; rather, he contends that he included the signed order to show cause in the papers served upon the Attorney General.

The affidavit submitted in support of respondent's motion to dismiss established that the Attorney General was not served with a signed copy of the order to show cause as required (see Matter of Smith v. Annucci, 166 A.D.3d 1172, 1173, 87 N.Y.S.3d 725 [2018]; Matter of Brown v. Fischer, 145 A.D.3d 1212, 1213, 44 N.Y.S.3d 219 [2016]). In opposition, petitioner tendered three affidavits of service. The first affidavit of service, which predated the signed order to show cause, only indicated that “[a]ll [p]apers” pertaining to the CPLR article 78 proceeding were served upon respondent and the Attorney General. The second affidavit of service – sworn to January 29, 2019 – similarly indicated that “all the documents enclosed herein” were served upon the necessary parties. It was not until April 2019, after respondent moved to dismiss the petition and long after the service deadline had passed, that petitioner first averred that the signed order to show cause had been served upon the Attorney General. As petitioner's proof neither demonstrated that he served the Attorney General in compliance with the order to show cause nor otherwise raised a question of fact sufficient to warrant a traverse hearing (see e.g. Matter of Perez v. Harper, 161 A.D.3d 1472, 1473, 77 N.Y.S.3d 740 [2018]), Supreme Court properly granted respondent's motion to dismiss the petition (see Matter of Simpson v. Annucci, 175 A.D.3d at 1695, 108 N.Y.S.3d 542; Matter of Watkins v. New York State Dept. of Corr. & Community Supervision, 159 A.D.3d 1252, 1252–1253, 70 N.Y.S.3d 410 [2018], lv denied 31 N.Y.3d 913, 81 N.Y.S.3d 373 [2018]; Matter of Barnes v. Venettozzi, 141 A.D.3d 1073, 1074, 35 N.Y.S.3d 674 [2016]). Petitioner's remaining arguments have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed, without costs.

Mulvey, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.