Green v. Duncan

Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered March 28, 2003 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of disobeying a direct order. Supreme Court granted respondent’s motion to dismiss the proceeding for lack of personal jurisdiction and failure to state a cause of action. This appeal ensued.

We affirm. It is well settled that an inmate’s failure to comply with the service directives set forth in the order to show cause requires dismissal of the petition absent a showing that prison presented an obstacle to the service requirements (see Matter of Townes v Selsky, 309 AD2d 1106 [2003]; Matter of Dicks v Williams, 308 AD2d 623 [2003]). Notwithstanding petitioner’s explanation that he had served respondent with a copy of the notice of petition and petition prior to the execution of the order to show cause, the record establishes that petitioner served respondent only with the order to show cause. Moreover, the exhibit forming the basis of the petition was not included in the papers served on respondent. Under these circumstances, the petition was properly dismissed (see Matter of Dicks v Williams, supra; Matter of Boustani v Goord, 298 AD2d 732 [2002]). In view of the foregoing, the merits of the petition are not properly before this Court.

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.