The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 8, 2016 521359
________________________________
In the Matter of WESLEY BROWN,
Appellant,
v
BRIAN FISCHER, as Commissioner MEMORANDUM AND ORDER
of Corrections and
Community Supervision,
et al.,
Respondents.
________________________________
Calendar Date: October 25, 2016
Before: Egan Jr., J.P., Lynch, Rose, Devine and Clark, JJ.
__________
Wesley Brown, Comstock, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondents.
__________
Appeal from a judgment of the Supreme Court (McCarthy, J.),
entered May 18, 2015 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted respondents' motion to
dismiss the petition.
Petitioner, an inmate, sought to commence this CPLR article
78 proceeding to challenge a prison disciplinary determination.
The amended order to show cause that was signed by Supreme Court
directed petitioner to serve a copy of the signed order,
petition, exhibits and supporting affidavits upon each respondent
and the Attorney General by first class mail on or before March
6, 2015. Petitioner failed to serve the required documents upon
all respondents and the Attorney General by the return date. As
a result, respondents moved to dismiss the petition for, among
-2- 521359
other things, lack of personal jurisdiction. Supreme Court
granted the motion and petitioner now appeals.
We affirm. It is well settled that an inmate's failure to
comply with the service requirements set forth in an order to
show cause mandates dismissal of the petition absent a
demonstration by the inmate that imprisonment presented an
obstacle to compliance (see Matter of Barnes v Venettozzi, 141
AD3d 1073, 1074 [2016]; Matter of Rodriquez v Fischer, 117 AD3d
1298, 1298 [2014]). Here, respondents presented affidavits
substantiating that service was not effectuated in accordance
with the requirements of the amended order to show cause.
Petitioner has not submitted contrary proof or even addressed the
lack of proper service in his brief. Therefore, Supreme Court
properly granted respondents' motion and dismissed the petition
(see Matter of Davis v Prack, 136 AD3d 1092, 1093 [2016]; Matter
of Anderson v Fischer, 112 AD3d 1089, 1090 [2013]).
Egan Jr., J.P., Lynch, Rose, Devine and Clark, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court