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Ross v. New York State Board of Parole

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


November 18, 2010

IN THE MATTER OF MICHAEL J. ROSS, APPELLANT,
v.
NEW YORK STATE BOARD OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 29, 2010

Before: Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ.

Appeal from a judgment of the Supreme Court (Devine, J.), entered March 5, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced the instant proceeding by order to show cause challenging a determination of respondent denying his parole release. The order to show cause provided that all papers relative to the order were to be served by ordinary first class mail upon respondent and the Attorney General on or before November 13, 2009. When petitioner failed to timely serve either, respondent moved to dismiss the proceeding for lack of personal jurisdiction. Supreme Court granted the motion and petitioner now appeals.

We affirm. The record demonstrates that petitioner failed to comply with the service requirements of the order to show cause and, thus, the petition must be dismissed for lack of personal jurisdiction as there has been no showing that his imprisonment prevented compliance (see Matter of Burke v Bezio, 71 AD3d 1317, 1318 [2010]; Matter of Ciochenda v Department of Correctional Servs., 68 AD3d 1363, 1363 [2009]). Notably, at no point has petitioner asserted that he attempted service on respondent. Morever, with regard to the Attorney General, the only correspondence from petitioner is a letter stating that he served the papers on that office during the weeks of October 4, 2009 and October 13, 2009, before the order to show cause was executed by Supreme Court. Accordingly, Supreme Court properly granted respondent's motion and dismissed the petition.

Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20101118

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