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In the Matter of Michael v. Jeffrey Helf

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


November 23, 2011

IN THE MATTER OF MICHAEL CHAVIS, APPELLANT,
v.
JEFFREY HELF, AS FACILITY PAROLE OFFICER, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered April 5, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: September 28, 2011

Before: Spain, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ.

Petitioner commenced the instant proceeding by order to show cause to challenge the withholding of his good time allowance. The order to show cause provided that the order and supporting documentation were to be served by ordinary first class mail upon respondents and the Attorney General on or before January 7, 2011. Petitioner thereafter failed to serve the papers upon respondents. Respondents, in turn, moved to dismiss the proceeding for lack of personal jurisdiction. Supreme Court granted the motion and petitioner appeals.

We affirm. The failure of an inmate to serve papers as directed by an order to show cause requires the dismissal of the petition on jurisdictional grounds, absent a showing by the inmate that imprisonment presented an obstacle to compliance (see Matter of Gantt v Lape, 83 AD3d 1349 [2011]; Matter of Pettus v Wetmore, 81 AD3d 1019, 1020 [2011]). Here, petitioner's affidavit of service indicates that he did not attempt service of any papers on respondents, and respondent Department of Corrections and Community Supervision submitted a sworn affidavit from an employee indicating that it had not been served with the pleadings. Accordingly, Supreme Court properly granted respondents' motion and dismissed the petition.

Spain, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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