Harrell v. Fischer

Appeal from a judgment of the Supreme Court (Devine, J.), entered December 5, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner sought to commence a CPLR article 78 proceeding challenging the denial of his participation in a temporary release program. The order to show cause required petitioner to serve the papers “by ordinary First Class Mail, upon each named respondent and upon the Attorney General ... on or before August 10, 2012.” Respondent moved to dismiss the petition for lack of personal jurisdiction, submitting an affidavit noting that while it had received “certain papers” from petitioner, the requisite documents were not received. Notwithstanding petitioner’s affidavit of service and subsequent submission of copies of certified mail receipts indicating that the Attorney General had received mail from petitioner around the appropriate time period, Supreme Court granted the motion and dismissed the proceeding. This appeal ensued.

We reverse. A review of the conflicting affidavits and documentation raises “questions of fact which should have been resolved by a hearing so that credibility and accuracy could be assessed by a trier of facts” (Steiner v Steiner, 81 AD2d 725, 725 [1981]; see Matter of Elliott v Butler, 8 NY3d 972, 973 [2007]; Matter of Lopez v Goord, 41 AD3d 992, 993 [2007]). Accordingly, the judgment must be reversed and the matter must be remitted to Supreme Court.

Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.