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In re Barnes

Supreme Court of New York, Third Department

July 11, 2013

In the Matter of JESSIE J. BARNES, Appellant,
v.
ALBERT PRACK, as Director, Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: June 6, 2013

Jessie J. Barnes, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Breslin, J.), entered March 13, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner sought to commence this CPLR article 78 proceeding to challenge three determinations finding him guilty of certain prison disciplinary rules. In the order to show cause, Supreme Court directed petitioner to effect service by first class mail upon respondent and the Attorney General on or before December 2, 2011 with all papers, including the original proof of service, to be submitted at least eight days prior to the return date. Subsequently, respondent moved to dismiss the petition based upon petitioner's failure to properly comply with the service requirements. Supreme Court granted the motion, prompting this appeal.

We affirm. Significantly, "an 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 A.D.3d 1363, 1363 [2009]). Here, the affidavit of service submitted by petitioner indicates that he mailed the pleadings on November 16, 2011; however, the notarization of the affidavit is dated November 8, 2011, eight days prior to the date that petitioner swore that he mailed those items, thereby rendering the affidavit defective. "Under these circumstances, petitioner's submissions are insufficient to raise an issue of fact and he was not entitled to a hearing" (Matter of Pettus v Bezio, 69 A.D.3d 1253, 1254 [2010] [citations omitted]; see Matter of Velez v Department of Correctional Servs., 26 A.D.3d 623, 623 [2006]). Given that "petitioner made no showing that his imprisonment presented any obstacle to his compliance with the service requirements, Supreme Court properly dismissed the petition" (Matter of Pettus v Bezio, 69 A.D.3d at 1254).

Rose, J.P., Lahtinen, Spain and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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