
    In the Matter of David Burr, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    [735 NYS2d 823]
   Appeal from a judgment of the Supreme Court (LaBuda, J.), entered May 2, 2001 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of personal jurisdiction.

Petitioner initiated this CPLR article 78 proceeding to challenge a determination of respondent which found him guilty of violating certain prison disciplinary rules. Petitioner attempted to commence the proceeding by means of an order to show cause; however, he failed to serve respondent with all of the appropriate documents in accordance with the time limitations set forth in the order to show cause. Supreme Court granted respondent’s motion to dismiss the proceeding based upon petitioner’s failure to obtain personal jurisdiction and this appeal ensued.

The Attorney General has advised this Court by letter that respondent seeks to withdraw any defense relating to personal jurisdiction and petitioner’s lack of compliance with the order to show cause (see, Matter of Butler v Goord, 262 AD2d 694, 695). Instead, the Attorney General asks this Court to vacate the judgment and remit the matter to Supreme Court, thereby giving respondent the opportunity to submit an answer.

Although petitioner did not serve respondent with the order to show cause and supporting papers until six days after the service date set forth in the order, the Attorney General does not refute his assertion that he was unable to do so as he did not receive the signed order from Supreme Court until one day before the service date. Upon our review of the record and the Attorney General’s request to withdraw its jurisdictional objection, we deem it appropriate to remit this matter to Supreme Court for a determination on the merits (see, Matter of Ali v Goord, 267 AD2d 520).

Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.  