| Matter of Pettus v Fischer |
| 2010 NY Slip Op 03019 [72 AD3d 1313] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of James Pettus, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
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Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered July 17, 2009 inAlbany County, which, in a proceeding pursuant to CPLR article 78, sua sponte, dismissed theamended petition.
Petitioner, a prison inmate, commenced this proceeding seeking to expunge a misbehaviorreport dated July 16, 2008 from his inmate record. Shortly thereafter, respondents moved todismiss the petition for, among other things, failure to plead using plain and concise statements.Supreme Court granted respondents' motion to dismiss on that ground but granted petitionerleave to file and serve an amended petition within 30 days. Petitioner then timely filed anamended petition, which included a request that the "clerk (serve) [the amended petition]upon [the] Attorney General's office" as well as on respondents. The amended petition wasaccompanied by an affirmation of service that indicated that petitioner served only "Clerk,Supreme Court Albany County." As a result, the court found that the amended petition had notbeen properly served upon respondents within 30 days, pursuant to the court's previous order.Moreover, the court found that the amended petition did not consist of plain and concisestatements in consecutively numbered paragraphs, as mandated by CPLR 3014 and, as a result,the court dismissed the amended petition. Petitioner appeals and we affirm.
An inmate's failure to comply with the service requirements of an order to show causemandates the dismissal of the petition absent a showing that obstacles presented by his or her[*2]imprisonment prevented compliance (see Matter of Ventura v New York StateDept. of Correctional Servs., 68 AD3d 1406, 1406-1407 [2009]; Matter of Mathie v Dennison, 39AD3d 1059, 1060 [2007]). Here, petitioner did not attempt to effect service upon eitherrespondents or the Attorney General and has made no showing that his imprisonment preventedhim from doing so. As such, we find that Supreme Court properly dismissed the amendedpetition for lack of personal jurisdiction (see Matter of Mathie v Dennison, 39 AD3d at1060).
Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.