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In Re Stephen M. Smith, Etc v. New York County District Attorney's Office

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 21, 2013

IN RE STEPHEN M. SMITH, ETC.,
RESPONDENT-APPELLANT,
v.
NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE,
PETITIONER-RESPONDENT.

Matter of Smith v New York County Dist. Attorney's Off.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 21, 2013

Tom, J.P., Mazzarelli, Saxe, Moskowitz, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Larry Stephen, J.), entered on or about October 10, 2012, which directed respondent-appellant to appear as a witness to testify in a criminal proceeding in an Indiana court, unanimously reversed, on the law, without costs, the petition denied and the special proceeding brought pursuant to CPL 640.10 dismissed.

The New York District Attorney's Office concedes that its failure to serve respondent as directed by its order to show cause, which required service of the papers supporting the order, resulted in a lack of personal jurisdiction over respondent (see CPLR 403[d], 2214[d]). Accordingly, denial of the petition and dismissal of the proceeding is warranted (see Matter of Ruine v Hines, 57 AD3d 369 [1st Dept 2008]; Matter of Feldman v Feldman, 54 AD3d 372, 374 [2d Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 21, 2013

CLERK

20130321

© 1992-2013 VersusLaw Inc.



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