Luchey v. State

Appeal from a judgment of the Supreme Court (Donohue, J.), entered July 28, 1997 in Albany County, which denied petitioner’s motion for leave to renew a prior proceeding brought pursuant to CPLR article 78 which was dismissed. Petitioner, an inmate at Sing Sing Correctional Facility in Westchester County, commenced a CPLR article 78 proceeding challenging the denial of his request pursuant to the Freedom of Information Law (Public Officers Law art 6) for information pertaining to the investigation leading to his arrest. Supreme Court ultimately granted respondent’s motion to dismiss the petition for lack of jurisdiction. Petitioner thereafter moved to renew his CPLR article 78 proceeding. His request for leave to renew was denied and petitioner appeals from that denial. Because petitioner failed to allege new or material facts which were previously unknown to him but instead cites to alleged inadequacies of the correction facility’s outgoing mail procedures to excuse his failure to properly serve respondent, we conclude that Supreme Court properly denied his motion for renewal (see, Matter of Brady v Executive Dept., Div. of Parole, 114 AD2d 659, 660; Foley v Roche, 68 AD2d 558, 568). Cardona, P. J., White, Peters, Spain and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.