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Pettus v. Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


January 28, 2010

IN THE MATTER OF JAMES PETTUS, APPELLANT,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: December 15, 2009

Before: Cardona, P.J., Spain, Malone Jr., Stein and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered December 2, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner sought to commence this CPLR article 78 proceeding to challenge a determination finding him guilty of a certain prison disciplinary rule. In the order to show cause, Supreme Court directed petitioner to effect service by first class mail on all respondents and the Attorney General on or before August 22, 2008. Thereafter, respondents moved to dismiss the petition based upon petitioner's failure to comply with the service requirements. Supreme Court granted the motion and petitioner appeals.

We affirm. The record does not establish that petitioner served the Attorney General as directed by the order to show cause. Although petitioner offered an affidavit of service, that affidavit was sworn to by petitioner one month prior to the execution of the order to show cause. Under these circumstances, petitioner's submissions are insufficient to raise an issue of fact and he was not entitled to a hearing (see Matter of Velez v Department of Correctional Servs., 26 AD3d 623 [2006]; cf. Matter of Lopez v Goord, 41 AD3d 992 [2007]). Considering that petitioner made no showing that his imprisonment presented any obstacle to his compliance with the service requirements, Supreme Court properly dismissed the petition (see Matter of Reynoso v Goord, 43 AD3d 1209 [2007]).

Cardona, P.J., Spain, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100128

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