        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

705.1
OP 12-01200
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF WALLACE DRAKE, PETITIONER,

                    V                             MEMORANDUM AND ORDER

HON. JOSEPH E. FAHEY, ONONDAGA COUNTY COURT
JUDGE AND KELLY REDMORE, CLERK OF THE ONONDAGA
COUNTY COURT, RESPONDENTS.


WALLACE DRAKE, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENTS.


     Proceeding pursuant to CPLR article 78 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department pursuant to CPLR 506 [b] [1]) to prohibit the enforcement
of a resentence.

     It is hereby ORDERED that said petition is unanimously dismissed
without costs.

     Memorandum: Petitioner commenced this original CPLR article 78
proceeding seeking relief in the nature of prohibition to prevent
respondents from enforcing his resentencing. “The record establishes
that petitioner failed to effect personal service of the notice of
petition and petition upon . . . the Attorney General (see[] CPLR 307
[1], [2]; 403 [c]), and similarly failed to seek an order to show
cause to authorize his use of service by mail in lieu of personal
service (see[] CPLR 308 [5]; 7804 [c]). Petitioner therefore failed
to acquire personal jurisdiction over respondent[s] (see[] CPLR 7804
[c]; Matter of Kelly v Scully, 152 AD2d 698)[, and] . . . th[at] fatal
jurisdictional defect requires dismissal of the proceeding” (Matter of
Bottom v Murray, 278 AD2d 817, 817).

     Dismissal of the proceeding is also required on the ground that
petitioner failed to join and serve the Onondaga County District
Attorney, a necessary party to this proceeding (see CPLR 1003, 7804
[i]; Matter of Barnwell v Breslin, 46 AD3d 990, 991; Matter of Thomas
v Justices of Supreme Ct. of State of N.Y., Queens County, 304 AD2d
585, 585-586; Matter of Arkim v Dillon, 222 AD2d 1116, 1116).

     Based on our determination, we do not reach petitioner’s
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                                          OP 12-01200

remaining contentions.




Entered:   June 28, 2013         Frances E. Cafarell
                                 Clerk of the Court
