Romero v. Department of Correctional Services

Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered June 27, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition. Petitioner, an inmate, filed a grievance challenging correctional officials’ failure to designate a code for his religious denomination. When his grievance was denied, he attempted to commence a CPLR article 78 proceeding challenging the denial. In the order to show cause, Supreme Court directed petitioner to serve “the [o]rder to [sjhow [clause, the petition, exhibits and any supporting affidavits, by ordinary [f]irst [c]lass [mjail, upon each named respondent and upon the Attorney General ... on or before April 15, 2005.” When petitioner failed to effectuate timely service on the Attorney General or serve the papers upon respondent, respondent moved to dismiss the petition for lack of personal jurisdiction. Supreme Court granted the motion and dismissed the petition, resulting in this appeal. Although petitioner’s affidavit of service indicates that he mailed the papers to respondent and the Attorney General on April 12, 2005, the envelope received by the Attorney General’s office indicates that it was not postmarked until April 18, 2005 and the affidavit provided by a secretary in the office of respondent’s counsel discloses that no papers were ever received by respondent. In view of this, and since petitioner has not demonstrated that obstacles related to his imprisonment prevented him from complying with the terms of the order to show cause, Supreme Court properly dismissed the petition (see Matter of Barclay v State of New York Dept. of Correctional Servs., 22 AD3d 974, 974 [2005]; Matter of Frederick v Goord, 20 AD3d 652, 653 [2005], lv denied 5 NY3d 712 [2005]). Cardona, EJ., Mercure, Crew III, Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.