Hughes v. Dennison

Appeal from a judgment of the Supreme Court (Stein, J.), entered January 6, 2006 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition. Following the November 2005 denial of his request for release to parole supervision, petitioner attempted to commence this CPLR article 78 proceeding challenging the determination. The order to show cause, signed by Supreme Court, directed petitioner to serve it, the petition, the exhibits and supporting affidavits upon each named respondent, as well as the Attorney General, by ordinary first class mail. Respondent thereafter moved to dismiss the petition due to petitioner’s failure to serve respondent with the papers specified in the order to show cause. Supreme Court granted the motion and this appeal ensued. We affirm. It is well settled that an inmate’s failure to comply with the service requirements of an order to show cause will result in the dismissal of the petition unless the inmate demonstrates that obstacles presented by his or her imprisonment prevented compliance (see Matter of Robinson v Goord, 21 AD3d 1150, 1151 [2005]). Here, respondent submitted affidavits by the senior mail clerk of the facility where petitioner was incarcerated as well as a secretary with the Division of Parole attesting to the fact that the order to show cause and supporting documentation were neither sent from the facility to respondent nor received by respondent’s office. Petitioner’s unsworn affidavit of service does not constitute compelling proof to the contrary inasmuch as it states in conclusory fashion that he served the Division of Parole with a copy of the verified petition. In any event, this affidavit does not establish that the necessary documents were served as mandated by the order to show cause (see Matter of Thomas v Selsky, 34 AD3d 904, 904 [2006]). Therefore, Supreme Court properly dismissed the petition. Cardona, P.J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.