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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Rory DOLAN, Appellant, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: December 29, 2005

Before:  CARDONA, P.J., CREW III, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Rory Dolan, Dannemora, appellant pro se. Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered July 12, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules.   Respondent moved to dismiss the petition on the ground that petitioner failed to timely serve respondent and the Attorney General in accordance with the order to show cause.   Supreme Court granted the motion to dismiss the petition and this appeal ensued.

Respondent now withdraws his objection to the timeliness of service based upon the discovery of a second order to show cause apparently issued after it was determined that petitioner was not given sufficient time for service pursuant to the first order to show cause.   Inasmuch as respondent was not given an opportunity to submit an answer, we deem it appropriate to remit the matter to Supreme Court (see Matter of Burr v. Goord, 290 A.D.2d 611, 612, 735 N.Y.S.2d 823 [2002], lv. dismissed 97 N.Y.2d 749, 742 N.Y.S.2d 607, 769 N.E.2d 354 [2002];  Matter of Ali v. Goord, 267 A.D.2d 520, 521, 698 N.Y.S.2d 566 [1999] ).

ORDERED that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court to permit respondent to serve an answer within 15 days of the date of this Court's decision.

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