Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing. The determination was affirmed on administrative appeal, but the penalty was modified. This CPLR article 78 proceeding ensued. Supreme Court denied respondent’s motion to dismiss for lack of personal jurisdiction, finding that petitioner’s failure to timely effectuate service of the papers referenced in the order to show cause was excusable because it was due to factors related to his imprisonment. After service of respondent’s answer, the proceeding was transferred to this Court.
We agree with respondent that petitioner’s failure to effect service in accordance with the provisions of the order to show cause requires dismissal of the petition. The order to show cause
Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ, concur. Adjudged that respondent’s motion to dismiss is granted, without costs, and petition dismissed.