| Clarke v Smith |
| 2012 NY Slip Op 05849 [98 AD3d 756] |
| August 2, 2012 |
| Appellate Division, Third Department |
| Carlton Clarke, Appellant, v Joseph T. Smith et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondents.
Appeal from an order of the Supreme Court (Melkonian, J.), entered September 28, 2010 inUlster County, which granted defendants' motion to dismiss the complaint.
In June 2010, plaintiff, an inmate at Shawangunk Correctional Facility in Ulster County, filedthe instant summons and complaint alleging deliberate indifference to his medical care byvarious prison officials. He thereafter attempted to effect service upon defendants Joseph T.Smith and Chang Lee by way of the institutional mail at Shawangunk, and upon defendant KarenBellamy via regular mail. Defendants thereafter successfully moved to dismiss the complaint forlack of personal jurisdiction and, upon plaintiff's appeal, we now affirm.
Inasmuch as he failed to either (1) personally deliver the summons to defendants, or (2)deliver same to defendants by certified mail in conjunction with personal delivery upon anAssistant Attorney General, there can be no question that plaintiff failed to properly servedefendants in the manner required by law (see CPLR 307 [2]; Hilaire v Dennison, 24 AD3d 1152[2005]). Nor can it be said that plaintiff's attempts at service satisfied the alternative requirementsof CPLR 312-a. Plaintiff improperly delivered the summons and complaint to Smith and Lee byinstitutional mail and, with regard to Bellamy, his mailing failed to include the requiredstatements of service and acknowledgments of receipt (see CPLR 312-a [a], [d];Strong v Bi-Lo Wholesalers, 265 AD2d 745, 745 [1999]). Moreover, plaintiff's laterattempts to correct service were ineffectual due to his failure to include the summons andcomplaint in his mailings to defendants (see CPLR 312-a [a]). We note in conclusion that"[w]hen the requirements for [*2]service of process have not beenmet, it is irrelevant that [the] defendant may have actually received the documents" (Raschelv Rish, 69 NY2d 694, 697 [1986]), because "[n]otice received by means other than thoseauthorized by statute does not bring a defendant within the jurisdiction of the court" (Macchiav Russo, 67 NY2d 592, 595 [1986]; see Matter of Gerdts v State of New York, 210AD2d 645, 646 [1994], appeal dismissed 85 NY2d 856 [1995], lv denied 85NY2d 810 [1995]).
Plaintiff's remaining arguments have not been preserved for our review.
Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that theorder is affirmed, without costs.