| Matter of Pettus v Department of Correctional Servs. |
| 2010 NY Slip Op 06735 [76 AD3d 1152] |
| September 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of James Pettus, Appellant, v Department ofCorrectional Services et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Devine, J.), entered October 9, 2009 inAlbany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motionto dismiss the petition.
By order to show cause, petitioner sought to commence this CPLR article 78 proceeding tocompel prison mailroom staff to stop tampering with his mail. The order to show cause wassigned by Supreme Court and directed petitioner to serve it, as well as the petition, exhibits andsupporting affidavits, by ordinary mail, upon each named respondent as well as the AttorneyGeneral on or before May 8, 2009. The papers were subsequently served upon respondentDepartment of Correctional Services, but not upon the Attorney General. Consequently,respondents moved to dismiss the petition for lack of personal jurisdiction. Supreme Courtgranted the motion and this appeal ensued.
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" (Matter of Ciochenda vDepartment of Correctional Servs., 68 AD3d 1363, 1363 [2009] [citations omitted]; see Matter of Pettus v Fischer, 72AD3d 1313, 1314 [2010]). Here, it is undisputed that petitioner did not serve the papersupon the Attorney General in accordance with the requirements of the order to show cause,although he had no difficulty effectuating [*2]proper service uponthe Department of Correctional Services. Inasmuch as petitioner has not demonstrated thatobstacles presented by his imprisonment precluded him from complying with the serviceprovisions of the order to show cause, Supreme Court properly dismissed the petition.Petitioner's remaining contention, having been raised for the first time in his brief, is not properlybefore us (see Matter of Wilson vArtus, 71 AD3d 1294, 1295 [2010]).
Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.