IN RE: Herman JONES

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

IN RE: Herman JONES, Appellant, v. Robert DENNISON, as Chair of the New York State Board of Parole, Respondent.

Decided: June 29, 2006

Before:  CARDONA, P.J., PETERS, SPAIN, ROSE and KANE, JJ. Herman Jones, Otisville, 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 December 9, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for lack of jurisdiction.

Following the denial of his request for parole release, petitioner attempted to commence the instant CPLR article 78 proceeding challenging the determination.   In the order to show cause signed by Supreme Court, petitioner was directed to serve the “[o]rder to [s]how [c]ause, the petition, exhibits and any supporting affidavits, by ordinary [f]irst [c]lass [m]ail, upon each named respondent and upon the Attorney General ․ on or before September 16, 2005.”   Although he served the papers on the Attorney General, he neglected to serve them on respondent.   As a result, respondent moved to dismiss the petition for lack of jurisdiction.   Supreme Court granted the motion and this appeal ensued.

We affirm.   The failure to comply with the service requirements of the order to show cause requires that the petition be dismissed for lack of personal jurisdiction (see Matter of Davis v. Goord, 20 A.D.3d 785, 786, 798 N.Y.S.2d 591 [2005], lv. dismissed, lv. denied 5 N.Y.3d 861, 807 N.Y.S.2d 12, 840 N.E.2d 1025 [2005] ).   Notably, petitioner conceded that he did not serve respondent and has not demonstrated that obstacles presented by his imprisonment prevented him from complying with the requirements of the order to show cause (see Matter of Green v. Duncan, 10 A.D.3d 743, 744, 781 N.Y.S.2d 712 [2004], lv. denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48 [2004];  Matter of Hickey v. Goord, 3 A.D.3d 802, 802, 770 N.Y.S.2d 904 [2004] ).   Therefore, Supreme Court properly granted respondent's motion.

ORDERED that the judgment is affirmed, without costs.

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