Opinion
2013-03-21
In re Stephen M. SMITH, etc., Respondent–Appellant, v. NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner–Respondent.
Shapiro, Arato & Isserles, New York (Jeremy Licht of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for respondent.
Shapiro, Arato & Isserles, New York (Jeremy Licht of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for respondent.
Order, Supreme Court, New York County (Larry Stephen, J.), entered on or about October 10, 2012, which directed respondent-appellant to appear as a witness to testify in a criminal proceeding in an Indiana court, unanimously reversed, on the law, without costs, the petition denied and the special proceeding brought pursuant to CPL 640.10 dismissed.
The New York District Attorney's Office concedes that its failure to serve respondent as directed by its order to show cause, which required service of the papers supporting the order, resulted in a lack of personal jurisdiction over respondent ( seeCPLR 403[d], 2214[d] ). Accordingly, denial of the petition and dismissal of the proceeding is warranted ( see Matter of Ruine v. Hines, 57 A.D.3d 369, 871 N.Y.S.2d 14 [1st Dept. 2008];Matter of Feldman v. Feldman, 54 A.D.3d 372, 374, 863 N.Y.S.2d 69 [2d Dept. 2008] ).