Boustani v. Goord

Spain, J. Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered October 31, 2001 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for lack of jurisdiction. Petitioner, a Cuban citizen and lawful permanent resident of this country who is incarcerated at Altona Correctional Facility in Clinton County, commenced this CPLR article 78 proceeding after his application to participate in the temporary release program (see Correction Law § 851 [9]) was canceled because an Immigration and Naturalization Service detainer had been issued against him. Supreme Court dismissed the petition on the ground that petitioner failed to comply with the service requirements of the order to show cause. Petitioner appeals and we affirm. [733] It is well settled that the “[failure of an inmate to satisfy the service requirements set forth in an order to show cause requires dismissal for lack of jurisdiction absent a showing that imprisonment presented obstacles beyond [the inmate’s] control which prevented compliance” (Matter of Gittens v Selsky, 193 AD2d 986, 987). Even where, as here, the rules of service are relaxed to accommodate an inmate’s incarceration, “no jurisdiction is acquired if the service requirements capable of being satisfied have not been met” (Matter of Hoyer v Coughlin, 179 AD2d 921, 921). In this case, petitioner alleges that he fully complied with Supreme Court’s order to show cause. Respondent admits being served with the order to show cause and supporting papers, but avers that the petition itself was not attached. As Supreme Court noted in its decision, neither petitioner’s affidavit of service, reply affidavit nor the petition itself specifically indicate that the petition was served upon respondent. Given these circumstances, we conclude that the petition was properly dismissed for lack of jurisdiction over respondent (see Matter of Wilder v New York State Div. of Parole, 249 AD2d 606, 607; Matter of McRae v New York State Div. of Parole, 221 AD2d 827, 828). In light of this disposition, we decline to address petitioner’s other contentions. Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.