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Pettus v. Fischer

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


April 15, 2010

IN THE MATTER OF JAMES PETTUS, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: March 1, 2010

Before: Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered July 17, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, sua sponte, dismissed the amended petition.

Petitioner, a prison inmate, commenced this proceeding seeking to expunge a misbehavior report dated July 16, 2008 from his inmate record. Shortly thereafter, respondents moved to dismiss the petition for, among other things, failure to plead using plain and concise statements. Supreme Court granted respondents' motion to dismiss on that ground but granted petitioner leave to file and serve an amended petition within 30 days. Petitioner then timely filed an amended petition, which included a request that the "clerk (serve) [the amended petition] upon [the] Attorney General's office" as well as on respondents.

The amended petition was accompanied by an affirmation of service that indicated that petitioner served only "Clerk, Supreme Court Albany County." As a result, the court found that the amended petition had not been properly served upon respondents within 30 days, pursuant to the court's previous order. Moreover, the court found that the amended petition did not consist of plain and concise statements in consecutively numbered paragraphs, as mandated by CPLR 3014 and, as a result, the court dismissed the amended petition. Petitioner appeals and we affirm.

An inmate's failure to comply with the service requirements of an order to show cause mandates the dismissal of the petition absent a showing that obstacles presented by his or her imprisonment prevented compliance (see Matter of Ventura v New York State Dept. of Correctional Servs., 68 AD3d 1406, 1406-1407 [2009]; Matter of Mathie v Dennison, 39 AD3d 1059, 1060 [2007]). Here, petitioner did not attempt to effect service upon either respondents or the Attorney General and has made no showing that his imprisonment prevented him from doing so. As such, we find that Supreme Court properly dismissed the amended petition for lack of personal jurisdiction (see Matter of Mathie v Dennison, 39 AD3d at 1060).

Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100415

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