Davis v. Prack

Appeal from a judgment of the Supreme Court (Collins, J.), entered March 31, 2015 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge three determinations finding him guilty of violating certain prison disciplinary rules. In the order to show cause, petitioner was directed to effect service by first class mail upon respondent and the Attorney General before December 12, 2014, with all papers, including the original proof of service, to be submitted at least eight days prior to the return date. Supreme Court thereafter granted respondent’s pre-answer motion to dismiss the petition, finding that petitioner failed to file an affidavit of service pertaining to respondent in accordance with the order to show cause. Petitioner now appeals.

We affirm. It is well settled that an inmate’s failure to comply with the directives set forth in an order to show cause “requires the dismissal of the petition on jurisdictional grounds, absent a showing by the inmate that imprisonment presented an obstacle to compliance” (Matter of Rodriguez v Fischer, 117 AD3d 1298, 1298 [2014] [internal quotation marks and citations omitted]; see Matter of Anderson v Fischer, 112 AD3d 1089, 1090 [2013]). Here, in response to respondent’s motion, *1093petitioner submitted a photocopy of the affidavit of service pertaining to respondent indicating that he served respondent on November 24, 2014. However, the record is devoid of any evidence that petitioner filed the original copy of the foregoing affidavit of service with Supreme Court within the time frame directed by the order to show cause. Accordingly, inasmuch as petitioner has not complied with one of the directives of the order to show cause and has not demonstrated that his imprisonment presented an obstacle to such compliance, Supreme Court properly granted respondent’s motion and dismissed the petition (see Matter of Spirles v McGinnis, 305 AD2d 822, 822 [2003], appeal dismissed and lv denied 100 NY2d 603 [2003]; Matter of McGuire v Goord, 294 AD2d 719, 720 [2002]).

Ordered that the judgment is affirmed, without costs.