IN RE: Javier CRUZ

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

IN RE: Javier CRUZ, Appellant, v. Glenn S. GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: December 21, 2000

Before:  CARDONA, P.J., CREW III, CARPINELLO, MUGGLIN and ROSE, JJ. Javier Cruz, Malone, appellant in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondents.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered April 10, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition for lack of personal jurisdiction.

Petitioner, a prison inmate, challenges the dismissal of his petition for lack of personal jurisdiction over respondents due to his failure to comply with the November 24, 1999 order to show cause, which relaxed the service requirements and directed that petitioner serve respondents and the Attorney-General by first-class mail on or before a specified date and submit an affidavit of service.   Affidavits submitted by respondents establish that they neither received the signed order to show cause nor the other necessary papers.   Inasmuch as petitioner failed to abide by the terms and conditions of the order to show cause, and there being no evidence that his imprisonment presented an obstacle beyond his control that prevented his compliance, Supreme Court properly dismissed the petition for lack of personal jurisdiction (see, Matter of Burnside v. Lacy, 269 A.D.2d 634, 703 N.Y.S.2d 810;  Matter of Gittens v. Selsky, 193 A.D.2d 986, 987, 598 N.Y.S.2d 110).

ORDERED that the judgment is affirmed, without costs.


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