Albritton v. N.Y.S. Div. of Parole

210 A.D.3d 1164

178 N.Y.S.3d 226

In the Matter of Jemal ALBRITTON, Appellant,

v.NEW YORK STATE DIVISION OF PAROLE, Respondent.

534506

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 7, 2022

Decided and Entered: November 3, 2022

Jemal Albritton, Woodbourne, appellant pro se.

Letitia James, Attorney General, Albany (Joseph M. Spadola of counsel), for respondent.

Before: Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Christina L. Ryba, J.), entered October 21, 2021 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, an incarcerated individual serving a prison term of 17 years to life stemming from a 2006 conviction, commenced this CPLR article 78 proceeding challenging the denial by respondent¹ of his initial request for parole release. Pursuant to an order to show cause signed by Supreme Court (Corcoran, J.) on May 27, 2021, petitioner was directed to serve a copy of the signed order to show cause, along with the petition and other supporting documents, upon respondent and the Attorney General by July 2, 2021. Thereafter, respondent moved to dismiss the petition for lack of personal jurisdiction because, as set forth in the supporting affidavits, petitioner did not serve respondent or the Attorney General with a copy of the executed order to show cause. Supreme Court (Ryba, J.) granted the motion, and this appeal ensued.

We affirm. "It is well established that 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 Marino v. Annucci, 146 A.D.3d 1241, 1241, 45 N.Y.S.3d 709 [3d Dept. 2017] [citations omitted], appeal dismissed and lv. denied 29 N.Y.3d 1025, 55 N.Y.S.3d 159, 77 N.E.3d 895 [2017] ). In his unsworn reply to respondent's motion, petitioner acknowledged that he did not serve an executed order to show cause as directed but claims that is because he never received a signed order to show cause. In support of his assertion, petitioner offered a printout of legal mail sent to him in the month of June 2021, which includes mail received from Supreme Court on June 8, 2021, however, there is no information as to its contents. Petitioner's unsworn and unsupported assertion in response to respondent's motion to dismiss is insufficient to excuse his noncompliance with the service requirements of the order to show cause (see Matter of McGuire v. Goord, 294 A.D.2d 719, 720, 741 N.Y.S.2d 750 [3d Dept. 2002] ; see also Matter of Spirles v. McGinnis, 305 A.D.2d 822, 822, 758 N.Y.S.2d 546 [3d Dept. 2003], appeal dismissed and lv. denied 100 N.Y.2d 603, 766 N.Y.S.2d 159, 798 N.E.2d 344 [2003] ). Under the circumstances, Supreme Court properly granted respondent's motion to dismiss for lack of personal jurisdiction (see Matter of Watkins v. New York State Dept. of Corr. & Community Supervision, 159...