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In the Matter of Mark W. Gantt v. William Lape

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


April 28, 2011

IN THE MATTER OF MARK W. GANTT, APPELLANT,
v.
WILLIAM LAPE, AS SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (Lalor, J.), entered June 7, 2010 in Greene County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: February 28, 2011

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

Petitioner, a prison inmate, sought to commence a CPLR article 78 proceeding challenging two prison disciplinary determinations. The order to show cause, signed by Supreme Court, directed that petitioner serve "a copy of this order, the petition and other papers on which it is granted . . . by ordinary mail upon the respondent[s], and the Attorney General of the State of New York, Albany, New York 12224, by mailing on or before March 15, 2010." It further directed petitioner to file affidavits of service showing compliance with the order.

Respondent moved to dismiss the petition for lack of personal jurisdiction due to petitioner's failure to follow the service provisions of the order to show cause. Supreme Court granted the motion and dismissed the petition. This appeal ensued.

We affirm. The record indicates that, although petitioner served the papers on the Attorney General, those papers were not served in a timely manner. In addition, petitioner's affidavit of service reveals that he did not serve any papers on respondent. Petitioner has clearly not complied with the service requirements of the order to show cause and has not excused his noncompliance by demonstrating that obstacles presented by his imprisonment prevented him from doing so (see Matter of Robinson v Goord, 21 AD3d 1150, 1151 [2005]; Matter of Green v Duncan, 10 AD3d 743, 744 [2004], lv denied 4 NY3d 701 [2004]). Therefore, Supreme Court properly granted respondent's motion and dismissed the petition for lack of personal jurisdiction (see Matter of Reynoso v Goord, 43 AD3d 1209 [2007]).

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

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110428

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