ResetAA Font size: Print

IN RE: Eugene MURRAY, Appellant, v. Brian FISCHER, as Commissioner of Corrections nd ommunity Supervision, Respondent.

    Decided: April 19, 2012

Before: ROSE, J.P., SPAIN, MALONE JR., STEIN and EGAN JR., JJ.Eugene Murray, Attica, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered April 25, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner sought to commence a CPLR article 78 proceeding challenging a prison disciplinary determination. The order to show cause required petitioner to serve the papers, “by ordinary [f]irst class mail, upon each named respondent and upon the Attorney General ․ on or before February 11, 2011.” Petitioner served the papers upon the Attorney General, but not upon respondent. Respondent, in turn, moved to dismiss the petition for lack of personal jurisdiction. Supreme Court granted the motion and petitioner appeals.

We affirm. It is well settled that an inmate's failure to comply with the service requirements of an order to show cause mandates dismissal of the petition unless it is demonstrated that obstacles presented by the inmate's imprisonment precluded compliance (see Matter of Thomas v. Selsky, 34 AD3d 904, 904 [2006]; Matter of Harrison v. Division of Parole, Chairman, 29 AD3d 1242, 1242 [2006] ). Here, petitioner has not shown that obstacles presented by his imprisonment prevented him from complying with the service requirements as he had no difficulty serving the Attorney General. Accordingly, Supreme Court properly dismissed the petition for lack of personal jurisdiction (see Matter of Chavis v. Goord, 46 AD3d 1029, 1030 [2007]; Matter of Reynoso v. Goord, 43 AD3d 1209 [2007] ).

ORDERED that the judgment is affirmed, without costs.

FindLaw Career Center

    Select a Job Title

      Post a Job  |  Careers Home

    View More