                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   521640
________________________________

INJAH UNIQUE TAFARI, Also
   Known as RICHARDO ORLANDO
   FOUST,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

VIJAKUMAR MANDALAYWALA et al.,
                    Respondents.
________________________________


Calendar Date:   August 8, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


     Injah Unique Tafari, Elmira, appellant pro se.

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

                             __________


      Appeal from an order of the Supreme Court (Elliott III,
J.), entered July 20, 2015 in Albany County, which granted
defendants' motion to dismiss the complaint.

      Plaintiff commenced this action pursuant to 42 USC § 1983
claiming that he had received inadequate medical care, naming as
defendants medical and administrative personnel employed by the
Department of Corrections and Community Supervision. After
plaintiff served the Attorney General and defendants by first
class mail rather than by personal service, defendants moved to
dismiss the complaint on the ground that, among others, they had
not been properly served as required by CPLR 308. Supreme Court
granted defendants' motion to dismiss the complaint based upon
lack of personal jurisdiction, and plaintiff now appeals.
                              -2-                521640

      As the Attorney General concedes in his brief, the order of
Supreme Court should be reversed and the matter remitted for the
court to rule on plaintiff's undecided motion for an order to
show cause authorizing an alternate method of service pursuant to
CPLR 308 (5) (see Born to Build, LLC v Saleh, 139 AD3d 654, 655
[2016]; Contimortgage Corp. v Isler, 48 AD3d 732, 734 [2008]).
The record reflects that, in May 2014, when plaintiff sent the
summons and complaint to the Albany County Supreme Court Clerk,
he included, among other things, an application for poor person
status as well as a motion for an order to show cause to serve
defendants by regular mail per CPLR 308 (5) (compare Matter of
Drake v Fahey, 107 AD3d 1634, 1634 [2013]). Supreme Court
(McGrath, J.) granted poor person status, but did not rule on the
motion regarding service; that order and the supporting documents
were mailed to plaintiff and filed with the Albany County Clerk
on December 12, 2014. Plaintiff thereafter mailed the complaint
by first class mail to the Attorney General and defendants.
Defendants then moved to dismiss the complaint based upon, among
other grounds, lack of personal jurisdiction due to noncompliance
with the service requirements of CPLR 308. Plaintiff opposed the
motion, alerting the court that there had been no ruling on his
motion, conceding that he had served the complaint in the absence
of a ruling, and requesting permission to withdraw the complaint
as premature and for a ruling on the motion.

      Supreme Court (Elliott III, J.), finding that plaintiff had
not properly served defendants, granted defendants' motion to
dismiss for lack of personal jurisdiction. The court indicated
that it found no proof in its file that plaintiff had made an
application seeking an order to show cause for approval to use an
alternative service method. On appeal, the Attorney General
confirms that a review of the Albany County Clerk's file
establishes that – in addition to plaintiff's notice, summons,
verified complaint and request for poor person status – the
Albany County Clerk's office also received plaintiff's affidavit
in support of a motion for an order to show cause seeking
permission to serve the papers by regular mail. Given that this
improvised service motion was never decided, the order granting
defendants' motion to dismiss based on lack of personal
jurisdiction must be reversed and the matter remitted for the
court to render a decision on plaintiff's motion for an order to
                              -3-                  521640

show cause.

      McCarthy, J.P., Lynch, Rose, Clark, and Aarons, JJ.,
concur.



      ORDERED that the order is reversed, on the law, without
costs, motion to dismiss denied, and matter remitted to the
Supreme Court for further proceedings not inconsistent with this
Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
