| Matter of Wittie v State of N.Y. Off. of Children & Family Servs. |
| 2008 NY Slip Op 08135 [55 AD3d 842] |
| October 21, 2008 |
| Appellate Division, Second Department |
| In the Matter of Bonnie Wittie, Petitioner, v State of New YorkOffice of Children & Family Services et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and DavidLawrence III of counsel), for respondent State of New York Office of Children & Family Services. Lorna B. Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), for respondentNassau County Department of Social Services (no brief filed).
Proceeding pursuant to CPLR article 78 to review a determination of John Franklin Udochi,designee of the Commissioner of State of New York Office of Children & Family Services, datedMarch 14, 2006, which, after a hearing, denied the petitioner's application to amend and seal a reportmaintained in the New York State Central Register of Child Abuse and Maltreatment.
Adjudged that the proceeding is dismissed, without costs or disbursements.
The petitioner commenced this CPLR article 78 proceeding to review the March 14, 2006determination of Special Hearing Officer John Franklin Udochi, designee of the Commissioner of theState of New York Office of Children & Family Services, denying her application to amend and seal areport maintained in the New York State Central Register of Child Abuse and Maltreatment(hereinafter the report). Prior to answering, the respondent State of New York Office of Children &Family Services (hereinafter OCFS) requested that the Supreme Court dismiss the proceeding insofaras asserted against [*2]it based on lack of personal jurisdiction, allegingthat the petitioner failed to properly serve it as required by CPLR 307. The respondent Nassau CountyDepartment of Social Services requested that the Supreme Court dismiss the proceeding insofar asasserted against it because it was not a proper party to the proceeding. Upon the Supreme Court'sdenial of the respondents' applications, the respondents served answers. The answer of the respondentOCFS included, inter alia, the affirmative defense of lack of personal jurisdiction based upon its claimof improper service. The Supreme Court dismissed that defense as barred by the law of the case andtransferred the proceeding here pursuant to CPLR 7804 (g).
Exercising our power to review the procedural claims asserted by the respondent OCFS (seeCPLR 7804 [g]; Matter of Desmone v Blum, 99 AD2d 170, 177 [1984]; see alsoMatter of Hunter's Crossing Neighborhood Assn. v Maul, 267 AD2d 1036, 1037 [1999];Matter of Moncrieffe v Goord, 249 AD2d 715, 716 [1998]), we find that the petitioner failedto properly serve the notice of petition and petition upon the respondent OCFS in accordance withCPLR 307 (2) (see Matter of Duroseau v Johnson, 289 AD2d 489, 490 [2001]; Matterof Russo v New York State Dept. of Motor Vehs., 181 AD2d 774, 775 [1992]; Matter ofDesmone v Blum, 99 AD2d 170, 177 [1984]; CPLR 7804 [g]; see also Matter of Hunter'sCrossing Neighborhood Assn. v Maul, 267 AD2d 1036, 1037 [1999]; Matter of Moncrieffe vGoord, 249 AD2d 715, 716 [1998]). Accordingly, personal jurisdiction has never been acquiredover OCFS, a necessary party to the instant proceeding (see Social Services Law §422 [1], [5], [8]), and, therefore, we dismiss the proceeding insofar as asserted against that respondent(see Matter of Duroseau v Johnson, 289 AD2d at 490; Matter of Russo v New YorkState Dept. of Motor Vehs., 181 AD2d at 775; see also Rego Park Nursing Home v State ofN.Y., Dept. of Health/Bur. of Residential Health Care Facility Reimbursement, 160 AD2d 923,924 [1990], affd 77 NY2d 942 [1991]).
Additionally, we find that the proceeding must be dismissed insofar as asserted against therespondent Nassau County Department of Social Services, as it is not a proper party to thisproceeding. Rivera, J.P., Spolzino, Florio and Leventhal, JJ., concur.