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Abreu v. Vonce

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


September 30, 2010

IN THE MATTER OF CARLOS ABREU, APPELLANT,
v.
HAWLEY VONCE, AS CORRECTION NURSE, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

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

Appeal from a judgment of the Supreme Court (Cahill, J.), entered July 16, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding alleging that he was denied due process, equal protection and his 8th Amendment rights in connection with his confinement in the special housing unit. Supreme Court (Lynch, J.), as relevant here, signed an amended order to show cause directing petitioner to serve the petition, exhibits and any supporting affidavits upon each named respondent and the Attorney General on or before February 6, 2009. Respondents moved to dismiss the petition on the ground that, among others, petitioner failed to gain personal jurisdiction over them by not complying with the service requirements of the amended order to show cause. Supreme Court (Cahill, J.) granted the motion and dismissed the petition. Petitioner now appeals.

"[A]n inmate's failure to serve papers in accordance with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacle to compliance" (Matter of Ciochenda v Department of Correctional Servs., 68 AD3d 1363, 1363 [2009]; see Matter of Green v Selsky, 50 AD3d 1405, 1406 [2008], lv denied 10 NY3d 716 [2008]). Here, the affidavits of service submitted by petitioner evidenced that he did not attempt to make proper service on respondents until February 18, 2009. While petitioner contends that he did not receive the amended order to show cause until February 10, 2009, he has submitted no proof to substantiate this claim. As such, Supreme Court properly dismissed the petition.

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

ORDERED that the judgment is affirmed, without costs.

20100930

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