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People ex rel Bernard 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. PAUL BERNARD, APPELLANT,
v.
RAYMOND CUNNINGHAM, AS SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered June 30, 2009 in Sullivan County, which, in a proceeding pursuant to CPLR article 70, granted respondents' motion to dismiss the petition.

Petitioner brought the instant application pursuant to CPLR article 70 for a writ of habeas corpus challenging the denial of his request for parole release. Supreme Court signed the writ and directed the manner in which the papers were to be served upon respondents as well as the Attorney General. Respondent successfully moved to dismiss the petition due to, among other things, petitioner's failure to comply with the service requirements, and this appeal ensued.

We affirm. It is well settled that "[a]bsent a showing that imprisonment presented an uncontrollable obstacle to proper service" (People ex rel. Brown v Greene, 10 AD3d 746, 747 [2004]), the failure to follow the service directives mandated by the court is jurisdictional requiring dismissal of the petition (see People ex rel. Wager v Greene, 37 AD3d 949 [2007]; People ex rel. Watson v Walsh, 7 AD3d 850 [2004]). Here, one respondent was never served with the required papers, the other respondent as well as the Attorney General were not served in a timely manner, and no reason has been put forth by petitioner for his failure to comply with the service directives set forth in the signed writ.

Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100513

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