Opinion
530571
01-21-2021
In the Matter of Shawn GREEN, Appellant, v. Earl BELL, as Superintendent of Clinton Correctional Facility, Respondent.
Shawn Green, Peekskill, appellant pro se. Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Shawn Green, Peekskill, appellant pro se.
Letitia James, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Bruening, J.), entered October 7, 2019 in Clinton County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
Petitioner attempted to commence this CPLR article 78 proceeding challenging, among other things, various prison disciplinary determinations and seeking an order compelling disclosure of certain information. Supreme Court directed petitioner to serve an affidavit of service with the Supreme Court Clerk's office on or before June 28, 2019. Thereafter, petitioner failed to file the requisite affidavit of service. As a result, by decision filed October 7, 2019, the court, on its own motion, dismissed the petition for lack of personal jurisdiction. Petitioner appeals.
We affirm. "It is well established that failure of an inmate to comply with the directives set forth in an order to show cause will result in dismissal of the petition for lack of personal jurisdiction, unless the inmate demonstrates that imprisonment presented obstacles beyond his or her control which prevented compliance" ( Matter of Simpson v. Annucci, 175 A.D.3d 1694, 1695, 108 N.Y.S.3d 542 [2019] [internal quotation marks and citations omitted]; see Matter of Davis v. Prack, 136 A.D.3d 1092, 1092, 23 N.Y.S.3d 757 [2016] ). As noted by Supreme Court, petitioner made no such showing in order to excuse his failure to comply with the directive in the order to show cause. Accordingly, the court properly dismissed the petition (see Matter of Sharp v. Annucci, 164 A.D.3d 1580, 1581, 84 N.Y.S.3d 596 [2018] ; Matter of Barnes v. Annucci, 144 A.D.3d 1286, 1287, 40 N.Y.S.3d 284 [2016] ; Matter of Davis v. Prack, 136 A.D.3d at 1093, 23 N.Y.S.3d 757 ; Matter of DeFilippo v. Fischer, 85 A.D.3d 1421, 1422, 924 N.Y.S.2d 860 [2011], lv denied 17 N.Y.3d 711, 2011 WL 4835694 [2011] ).
Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed, without costs.