Davis v. Prack

Decision Date04 February 2016
Citation23 N.Y.S.3d 757,136 A.D.3d 1092
Parties In the Matter of Lavar DAVIS, Appellant, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
CourtNew York Supreme Court — Appellate Division

136 A.D.3d 1092
23 N.Y.S.3d 757

In the Matter of Lavar DAVIS, Appellant,
v.
Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

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

Feb. 4, 2016.


23 N.Y.S.3d 757

Lavar Davis, Pine City, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., ROSE and CLARK, JJ.

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 A.D.3d 1298, 1298, 985 N.Y.S.2d 769 [2014] [internal quotation marks and citations omitted]; see Matter of Anderson v. Fischer, 112 A.D.3d 1089, 1090, 976 N.Y.S.2d 418 [2013] ). Here, in response to respondent's

motion, petitioner submitted a photocopy of the affidavit of service pertaining to respondent indicating...

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6 cases
  • Hall v. Benziger, 525930
    • United States
    • New York Supreme Court Appellate Division
    • July 26, 2018
    ...WL 3149592 [June 27, 2018] ; see Matter of Brown v. Fischer, 145 A.D.3d 1212, 1213, 44 N.Y.S.3d 219 [2016] ; Matter of Davis v. Prack, 136 A.D.3d 1092, 1092, 23 N.Y.S.3d 757 [2016] ). Here, the affidavits submitted in support of respondent's motion to dismiss established that petitioner did......
  • Johnson v. Mandalaywala
    • United States
    • New York Supreme Court Appellate Division
    • October 1, 2020
    ...1370, 1370–1371, 118 N.Y.S.3d 763 [2020] [internal quotation marks, brackets and citations omitted]; see Matter of Davis v. Prack, 136 A.D.3d 1092, 1092–1093, 23 N.Y.S.3d 757 [2016] ). The affidavit of service filed by plaintiff indicates two separate addresses where the papers were mailed ......
  • Green v. Bell
    • United States
    • New York Supreme Court Appellate Division
    • January 21, 2021
    ...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 t......
  • Brown v. Fischer
    • United States
    • New York Supreme Court Appellate Division
    • December 8, 2016
    ...in his brief. Therefore, Supreme Court properly granted respondents' motion and dismissed the petition (see Matter of Davis v. Prack, 136 A.D.3d 1092, 1093, 23 N.Y.S.3d 757 [2016] ; Matter of Anderson v. Fischer, 112 A.D.3d 1089, 1090, 976 N.Y.S.2d 418 [2013] ).ORDERED that the judgment is ......
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