| Matter of Ciochenda v Department of Correctional Servs. |
| 2009 NY Slip Op 09325 [68 AD3d 1363] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ioan Ciochenda, Appellant, v Department ofCorrectional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 17, 2008 inAlbany County, which, in a proceeding pursuant to CPLR article 78, granted respondent'smotion to dismiss the petition.
The Commissioner of Correctional Services issued a determination finding petitioner guiltyof violating two prison disciplinary rules. Petitioner, in turn, commenced this CPLR article 78proceeding. Supreme Court (Egan, J.) signed an order to show cause directing petitioner to serveit, the petition, exhibits and supporting affidavits upon respondent and the Attorney General onor before January 4, 2008. Respondent moved to dismiss the petition on the ground, amongothers, that petitioner failed to comply with the service requirements of the order to show cause.Supreme Court (Teresi, J.) granted the motion and dismissed the petition. Petitioner nowappeals.
We affirm. It is well settled that an inmate's failure to serve papers in accordance with thedirectives set forth in an order to show cause will result in dismissal of the petition for lack ofpersonal jurisdiction, unless the inmate can demonstrate that imprisonment presented an obstacleto compliance (see Matter of Green vSelsky, 50 AD3d 1405, 1406 [2008], lv denied 10 NY3d 716 [2008]; Matter of Thomas v Selsky, 34 AD3d904, 904 [2006]). Here, petitioner admitted that he did not serve either respondent or theAttorney General with papers until January 8, 2008. [*2]Moreover, while he served a copy of the order to show cause, heneglected to include the other papers referenced therein. Petitioner's own affidavit of serviceconfirms that he did not comply with the directives set forth in the order to show cause.Although he contends that his inability to locate a notary at the facility to which he had beentransferred contributed to his delay in serving the papers, he has not established that this was anobstacle preventing him from complying with the provisions of the order to show cause.Therefore, Supreme Court properly dismissed the petition.
Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgmentis affirmed, without costs.