Opinion
No. CV-23-0975
04-18-2024
In the Matter of Sonja Griffin-Robinson, Appellant, v. New York State Department of Corrections and Community Supervision et al., Respondents.
Sonja Griffin-Robinson, Bedford Hills, appellant pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Calendar Date: March 22, 2024
Sonja Griffin-Robinson, Bedford Hills, appellant pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and McShan, JJ.
Appeals (1) from a judgment of the Supreme Court (Jonathan D. Nichols, J.), entered April 18, 2023 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition, and (2) from an order of said court, entered May 18, 2023 in Albany County, which denied petitioner's motion to reargue.
Petitioner commenced this CPLR article 78 proceeding against respondents seeking to challenge a prison disciplinary determination. Pursuant to the order to show cause signed by Supreme Court (Hartman, J.), petitioner was directed to serve the petition and any supporting materials upon the Attorney General and each of the named respondents by first class mail on or before February 17, 2023. By her own admission, petitioner only served the required papers upon the Attorney General. Supreme Court (Nichols, J.) granted respondents' subsequent motion to dismiss the petition for lack of personal jurisdiction and denied petitioner's motion for reconsideration. These appeals ensued.
"It is well established that the failure of an incarcerated individual 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 incarcerated individual demonstrates that imprisonment presented obstacles beyond his or her control which prevented compliance" (Matter of Albritton v New York State Div. of Parole, 210 A.D.3d 1164, 1164 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; accord Matter of Montes v New York State Dept. of Corr. & Community Supervision, 223 A.D.3d 1131, 1132 [3d Dept 2024]; see People ex rel. Curran v Keyser, 196 A.D.3d 980, 981 [3d Dept 2021], lv denied 37 N.Y.3d 907 [2021]). In her unsworn response to respondents' motion to dismiss, petitioner conceded that she failed to serve any of the named respondents because she mistakenly believed that service upon the Attorney General would suffice. As petitioner did not demonstrate the existence of any obstacles that would preclude her from complying with the clear directive set forth in the order to show cause, Supreme Court properly granted respondents' motion to dismiss the petition (see Matter of Montes v New York State Dept. of Corr. & Community Supervision, 223 A.D.3d at 1132).
Even assuming that petitioner's attempt to invoke the provisions of CPLR 2001 is properly before us, that statute "was not intended to allow courts to create jurisdiction where it otherwise does not exist" (Matter of Dorcinvil v Annucci, 186 A.D.3d 1853, 1855 [3d Dept 2020] [internal quotation marks and citation omitted]). Finally, "[t]o the extent that petitioner challenges the denial of [her] motion for reconsideration, we note that such motion was one for leave to reargue, as [she] alleged no new facts or demonstrated any change in the law" (People ex rel. Kearney v Bartlett, 131 A.D.3d 1313, 1314 [3d Dept 2015]). As no appeal lies from the denial of a motion to reargue (see Matter of Boyle v NYS Dept. of Motor Vehs., 200 A.D.3d 1375, 1378 [3d Dept 2021]), petitioner's appeal from Supreme Court's order must be dismissed (see id.; People ex rel. Kearney v Bartlett, 131 A.D.3d at 1314).
Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ORDERED that the appeal from the order is dismissed, without costs.