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People ex rel Holman v. Cunningham

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


May 13, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL. EUGENE HOLMAN, APPELLANT,
v.
RAYMOND CUNNINGHAM, AS SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Peters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered January 29, 2009 in Sullivan County, which, in a proceeding pursuant to CPLR article 70, granted respondents' motion to dismiss the petition.

Petitioner brought this application pursuant to CPLR article 70 seeking a writ of habeas corpus following the denial of his request for parole release. Supreme Court signed an order to show cause directing the manner in which service of the papers was to be made upon respondents and the Attorney General. Respondents successfully moved to dismiss the petition for lack of personal jurisdiction and this appeal ensued.

We affirm. An inmate's failure to serve papers in accordance with the directives set forth by the court in an order to show cause is a jurisdictional defect requiring dismissal of the petition absent a demonstration by the inmate that obstacles presented by his or her imprisonment precluded compliance (see People ex rel. Wager v Greene, 37 AD3d 949 [2007]; People ex rel. Brown v Greene, 10 AD3d 746 [2004]; People ex rel. Watson v Walsh, 7 AD3d 850 [2004]). Petitioner did not serve the papers in accordance with the provisions of the order to show cause and has not provided an adequate excuse for his failure to do so (see People ex rel. Bernard v Cunningham, ___ AD3d ___ [decided herewith]).

Peters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100513

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