The following papers were read on this motion: Order to Show Cause signed May 19, 2021 Verified Petition dated March 7, 2021 Verification sworn to March 9, 2021 Affidavit in Support of Order to Show Cause sworn to March 9, 2021 Application for Index No., undated Exhibit A: Letter from Petitioner to Kings County Clerk dated February 4, 2021 Exhibit B: Letter from Kings County Clerk’s Office dated February 11, 2021 Exhibit C: Letter from Petitioner to Criminal Records Officer / Clerk, Supreme Court Criminal Term dated February 18, 2021 Letter from Petitioner to Clerk of the Kings County Supreme Court dated March 13, 2021 Letter from Petitioner to Supreme Court Criminal Term dated February 18, 2021 Request for Judicial Intervention dated March 7, 2021, filed May 12, 2021 Affidavit in Support of Application for Fee Reduction sworn to March 9, 2021 Authorization for Correctional Trust Fund Account to be Sent to Clerk of Court, undated NYS Department of Corrections Inmate Balance Screen dated April 7, 2021 Order — Inmate Reduced Filing Fee Application signed April 9, 2021, filed May 12, 2021 Letter from Petitioner to Court dated April 11, 2022, with envelope Decision and Interim Order of Kings County Supreme Court dated March 6, 2023 Letter from Petitioner to Court dated April 15, 2023 Letter from Petitioner to First Deputy Superintendent, Sing Sing Correctional Facility dated April 10, 2023 Letter from Petitioner to FOIL Officer Y. Cheverez dated March 14, 2023 Affidavit1 of Service upon Attorney General sworn to July 12, 2021 Letter from Petitioner to Court dated May 2, 2023 with envelope Non-Party Brief in Response to the Court’s March [6], 2023 Order filed by Kings County District Attorney April 28, 2023 Affirmation of George B. Forbes, Esq. in Support of Kings County District Attorney’s Response to the Court’s March [6], 2023 Order dated April 28, 2023 Letter from Petitioner to Court dated June 4, 2023 with envelope Affirmation of Charles F. Sanders, Esq. in Response to the March [6], 2023 Order dated May 23, 2023 Exhibit 1: Documents Received by the Office of the Attorney General filed May 23, 2023 Affidavit in Reply to the Response to the March [6], 2023 Order sworn to June 1, 2023 Exhibit A: Criminal Justice Agency File filed June 1, 2023 Letter from Petitioner to Deputy Superintendent of Administration, Sing Sing Correctional Facility dated May 2, 2023 Letter from Kendra E. Riddleberger, Esq., City of New York Law Department, to Court dated May 18, 2023 Affirmation of Charles F. Sanders, Esq. in Response to Petitioner’s Reply Affidavit sworn to June 20, 2023 DECISION AND ORDER U pon the foregoing papers, having heard oral argument on the record from appearing counsel, and due deliberation having been had thereon, this Court issues the within Decision and Order. I. Background This is a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR) by a prisoner seeking copies of certain records in his criminal case file. Petitioner Neb Morrow (“Petitioner”) seeks to compel Respondent to locate, certify, and send those records to Petitioner pursuant to CPLR 8019 and County Law §925 (see Order to Show Cause at 2). Proceedings Prior to this Court’s March 6, 2023 Interim Decision and Order Petitioner’s attempt to obtain this file has been protracted for over two years, beginning in early 2021. During the Covid-19 pandemic in 2021 and 2022, Petitioner’s special proceeding was adjourned several times before it appeared on this Court’s March 1, 2023 motion calendar. There were no appearances at the call of the case on that date; Petitioner did not appear because he was incarcerated and nobody else did either. The Order to Show Cause initiating this proceeding directed that service be made upon the Attorney General, but no representative of her office appeared. On March 6, 2023, this Court issued an interim decision and order directing the submission of papers by three non-parties and adjourning the petition to June 23, 2023. On that date, a requested document was produced in court by the Kings County District Attorney’s office (“KCDA”). However, this Court reserved decision. Petitioner’s filings in this case at times referred to a “file” and at times to a “document.” It is unclear whether what the KCDA provided on June 23, 2023 satisfied Petitioner’s quest. Therefore, it is before this Court to determine whether or not Petitioner is entitled under law to compel the search for and provision of the document or documents he sought, and, if so, which party is responsible for that search and provision. This Court’s research revealed that Petitioner is currently in custody at Sing Sing Correctional Facility, having been convicted of robbery in the first degree in 2010. Petitioner was first incarcerated in 1996, after being convicted of several felonies and sentenced to 10 to 20 years in prison. The crimes for which Petitioner is currently incarcerated were committed while he was out on parole. This Court’s review of Petitioner’s litigation history, as set forth in detail in its March 6, 2023 interim decision and order, also revealed that Petitioner had commenced several actions since 2010 seeking to vacate his conviction. This Court’s review of the papers submitted by Petitioner yielded the following information. Petitioner wrote to the Kings County Clerk on February 4, 2021, claiming to have written multiple times with requests for a document in his criminal case file. Petitioner’s letter cited the provision of County Law §925 that upon payment of the fee prescribed, a county clerk must comply with a request to search for a document in his files, certify as to its presence, and provide copies of said document upon request. Petitioner expressed his intention to pay the fee via a third party, and requested that the search and certification of his requested documents be performed upon receipt of the payment. A reply from the Kings County Clerk’s Office, dated February 11, 2021, stated that the office handled only civil matters and referred Petitioner to the Supreme Court — Criminal Term. The address which the employee of the Clerk’s office provided therein was 320 Jay Street, Brooklyn, NY 11201; Att: Criminal Records Request. The record also showed a letter dated February 18, 2021 from Petitioner to the Criminal Records Officer / Clerk of Supreme Court, Criminal Term (Kings County), which claimed to follow two previous requests for the file sought. The letter included a description of the document sought by Petitioner as a “Mugshot Pedigree which consists of one page with two photos on it, a head and shoulders facial photo and a full body photo on the right side of the page and pedigree info on the left consisting of my name, age, precinct of arrest and other identifying details” (Letter from Petitioner to the Criminal Records Officer / Clerk of Supreme Court, Criminal Term (Kings County) at 2). If further denied the file, Petitioner expressed that he would commence legal action against unspecified parties (Letter from Petitioner to the Criminal Records Officer / Clerk of Supreme Court, Criminal Term (Kings County) at 1). There was no acknowledgement of receipt of this letter by anyone in the records department of Kings County Supreme Court, Criminal Term. Petitioner commenced this Article 78 proceeding thereafter by an Order to Show Cause signed on May 19, 2021 by the Court (Hon. Richard Velasquez, J.S.C.). It directed Respondent to “Show Cause why said officer should not be compelled to perform the ministerial duty of locating, certifying, copying and sending petitioner a copy of the file herein requested pursuant to CPLR 8019 and County Law §925.” Service was to be made upon the Attorney General by First Class mail on or before July 14, 2021. Interim Decision and Order As noted above, there were no appearances at the call of this case on March 1, 2023. This Court’s interim decision, issued March 6, 2023, proffered several possible explanations for the Attorney General’s failure to appear, including the possibility that Petitioner had not actually served the Order to Show Cause and supporting papers of this proceeding on the Attorney General. Indeed, the only document approaching an affidavit of service was Petitioner’s April 11, 2022 letter to the Court, in which Petitioner wrote, “I sent the Court a copy of the Order to Show Cause that you issued, with the Affidavit in Support, Verified Petitioner and Exhibits on the Attorney General in this matter on July 13, 2021″ (see Letter from Petitioner to Court dated April 11, 2022).2 Since this letter was not sworn to, however, it is not proper proof of service. This Court’s interim decision noted that Petitioner has represented himself in numerous aspects of litigation in New York State, including multiple Article 78 proceedings, an action against the state in the Court of Claims, and several appeals. With such extensive litigation experience, Petitioner should have known the procedures governing service of papers. The interim decision further outlined the confusion surrounding the identity of the Respondent, denoted by Petitioner as “Criminal Records Officer,” which is not specific enough to denote the title of an existing agency or a particular official. It was unclear who was actually in possession of the records Petitioner sought. This Court also noted in its interim decision that Petitioner’s proceeding was taking too long to resolve, belying its classification as a special proceeding (CPLR 7804 [a]).3 This Court deemed it appropriate to direct the notice of this proceeding to potential recordkeepers of the files sought by Petitioner and to potential counsel of those recordkeepers, as provided by CPLR 7802 [d].4 This Court issued an interim order on March 6, 2023 as follows: (1) This proceeding is adjourned to June 23, 2023. (2) Petitioner Neb Morrow is directed to submit to the Court proper proof of service of the order to show cause and the papers upon which it was granted, by April 15, 2023 (by mailing it to the Motion Support Office, Supreme Court — Kings County, 360 Adams Street, Room 227, Brooklyn, NY 11201), with copies being served by mailed on the Kings County District Attorney (350 Jay Street, 14th Floor, Brooklyn, NY 11201); the New York City Corporation Counsel (100 Church Street, New York, NY 10007); and the New York State Attorney General (28 Liberty Street,, Att’n: Managing Attorney’s Office, 16th Floor, New York, NY 10005). “Kings County Supreme Court: Index No. 133/2021″ shall be set forth on the envelopes. (3) The Kings County District Attorney, the New York City Corporation Counsel, and the New York State Attorney General are directed to submit papers in response to the petition and are granted leave to interpose any defenses provided for by law, by May 31, 2023. Copies of any papers submitted shall be served upon Petitioner by first-class mail along with proof of service. (4) Upon this Court’s review of the papers provided for in the preceding two paragraphs, the Court will determine if appearances on June 23, 2023 in this Part by answering persons are necessary. Proceedings Following Interim Decision and Order Following the issuance of our interim decision and order, Petitioner wrote to this Court in a letter dated April 15, 2023. Petitioner attached an affidavit of service, a letter to the First Deputy Superintendent of Sing Sing Correctional Facility, and a letter to a FOIL officer at the facility thereto and stated in pertinent part as follows: Attached to this letter is a copy of the Affidavit of Service that I served upon the Attorney General in this matter. As the notary public was not available, I swore under the penalty of perjury pursuant to 28 USC 1746, as it is a regular thing in here that the notary is not available. Attached also is a copy of the letter that I sent to the FOIL officer in here, requesting a copy from the Correspondence Office of the legal mail log, which shows that I sent out legal mail on or about the date indicated in the Affidavit of Service. As the FOIL officer has not responded, I wrote the First Deputy Superintendent to get some movement on this matter and am awaiting a response which should come this week. Please bear with me on this as I will advise as to when I obtain the evidence that I served the Attorney General in this matter. The “affidavit”5 swearing to the service of the Order to Show Cause — which apparently Petitioner was able to obtain — was signed and sworn to by Petitioner on July 12, 2021. “Self sworn,” it states: The undersigned, Neb Morrow has on this 12th day of July, 2021, placed in the Sing Sing Correctional Facility’s mailbox a true and exact copy of Order to Show Cause, Index No. 133/2021 to be served by First Class Mail, via United States Postal Service to the following persons: Hon. Leticia James, A.G. Office of the Attorney General The Capitol Albany, NY 12224 /s/ Neb Morrow DIN # [redacted] Sing Sing Correctional Facility 354 Hunter Street Ossining, N.Y. 10562 Notary Unavailable. I swear under the penalty of perjury that the above is true. USC §1746 Executed On: July 12, 2021 S. /s/ Neb Morrow Petitioner’s next correspondence with this Court, dated May 2, 2023, attached a follow-up letter to the Deputy Superintendent and no other affidavit of service. Upon this Court’s direction to submit papers, an affirmation was filed by Charles B. Sanders, Esq., Assistant Attorney General in the Office of the Attorney General of the State of New York. Therein, the Attorney General responded, in pertinent part, that 8. After receiving the March [6], 2023 Order, our Office searched our electronic files to determine whether we had any record having received the Article 78 papers. No record exists having received the papers. 9. If the Office of the Attorney General had received the Article 78 papers, the matter would have been referred to the OCA Office of General Counsel for their consideration, including litigation, for that is the entity that handles litigation concerning administrative matters involving the court system, including access to court records and FOIL requests. No such referral occurred at the time because the Office of the Attorney General had not received the Article 78 papers. … 12. After receiving the papers from NYSCEF, our Office provided OCA Office of the General Counsel (“Counsel”) a copy of the Article 78 papers and the March [6], 2023 Order and confirmed the Indictment Number, 9552/2009. 13. Thereafter, Counsel contacted the Clerk’s Office at the Kings County Supreme Court, Criminal Part, and was provided a copy of the documents that is annexed hereto as Exhibit “1″, Morrow 000001-000024. 14. On May 23, 2023, a copy of the documents, Exhibit “1″, was mailed to Petitioner Morrow. 15. If there is any need for further review of the record, Petitioner Morrow should contact the Clerk’s Office or Counsel concerning any subsequent requests. A review of “Exhibit 1″ reveals a collection of document copies, consisting of an interview report by the Criminal Justice Agency, a prisoner movement slip, several indistinct photographs, an illegible document, and a tax registration document. Also included in the file is a Mugshot Pedigree conforming to the description of the document sought by Petitioner included in Petitioner’s February 18, 2021 letter. Also in the record is Petitioner’s affidavit in reply to the response of the Attorney General wherein he asserted, in pertinent part, that 3. The Response contains an Exhibit section labeled “Exhibit 1″ that is only partially responsive to Petitioner’s requests in this matter. 4. First, Petitioner is submitting to the Court the actual original copy received from the Attorney General’s Office. Exhibit A. 5. As the Court can see, most of the pages have been deliberately darkened to the point where the images in the photos therein cannot be discerned. 6. Petitioner would like the Court to note that this can only be done by someone pressing the “Background Density” prompt of the printing machine, and selecting a setting that makes the images appear this dark. Thus, the images are intentionally made to appear opaque. 13. Also, if the Court will note, pages 000001 and 000002 appear to come from a file that was in a binder that contains prongs for holes located on the top of the pages that are placed in the binder. Petitioner believes that the remaining pages from that binder may contain the information that Petitioner seeks and there has been no reason asserted as to why Petitioner cannot have access to this file. The Court should also see Morrow 000010, where at the bottom there are indications that it is also part of the binder, but the page is completely blank. Petitioner needs the information that has been apparently whited out from this page as well. 14. Wherefore Petitioner is requesting that the Court order the Attorney General’s office to either turn over the remaining pages from the binder containing Petitioner’s court filed records or limit disclosure to documents pertaining to any photographs and/or mugshots/pedigree information that was taken by Brooklyn Central Bookings staff on or prior to October 14, 2009, related to this case, as these were the documents Petitioner filed this action to receive copies of. 15. Also, this Court is asked to order the Attorney General to turn over clear color copies of the documents that the Attorney General’s office has submitted. The Attorney General’s office responded to Petitioner’s new request with the assertions, in pertinent part, that 3. The Office of the Attorney General opposes Petitioner’s new application limited to seeking this Court to order that the Attorney General take action with providing the documents that Petitioner seeks from the Kings County Supreme Court on the grounds that the Attorney General (a) is not the agency that possesses the records sought by Petitioner pursuant to the Freedom of Information Law (“FOIL”), Public Officers Law §84 et seq., (b) was not the prosecutor in the underlying criminal action, and (c) is not counsel for the Kings County Supreme Court in this matter The response of the KCDA to this Court’s March 6, 2023 order asserted that a petition against it was not ripe for review under Article 78. It averred that District Attorneys’ offices do not fall under Judiciary Law §2556 governing this case, citing Matter of Jones v. District Attorney’s Off. of the County of N.Y., 33 Misc 3d 462 [Sup Ct, New York County 2011]). As an agency and not a clerk of a court, it argued, records requests to the KCDA must follow the administrative procedure outlined in the Freedom of Information Law (“FOIL”) (Public Officers’ Law §§84, 86). Only a request that is not complied with following the exhaustion of administrative remedies described therein may receive judicial review under Article 78 (citing Walton v. New York State Dept. of Correctional Servs., 8 NY3d 186, 195 [2007]; Tinker St. Cinema v. New York State Dept. of Transp., 254 AD2d 293 [2d Dept 1998].) Since no request had been made of it pursuant to FOIL, the KCDA argued, it should not be included in the proceeding. The response obtained from the Corporation Counsel of the City of New York Law Department, in a letter written from Assistant Corporation Counsel Kendra Elise Riddleberger to this Court and dated May 18, 2023, stated, in pertinent part: Pursuant to Your Honor’s March 6, 2023 Order, Corporation Counsel reviewed Petitioner’s petition and have determined that we are not the proper party, as Petitioner seeks his Criminal Court file from Kings County Criminal Court and does not seek any documents or relief from the City of New York. Specifically, Petitioner seeks his Criminal Court file from Kings County Criminal Court pursuant to Judiciary Law §255, which states that a clerk must search files upon request and certify as to the result. In Matter of Jones v. District Attorney’s Off. of the County of N.Y. the Court explained that the plain language of Judiciary Law §255 only refers to “clerk of a court” and explained that “it is beyond cavil that district attorneys do not fit into the category of clerks of the court.” 33 Misc. 3d 462, 464 (N.Y. Cty. Sup. Ct. Aug. 18, 2011). Similarly, the City of New York is not a “clerk of a court” and therefore this request is not appropriate for Corporation Counsel. Petitioner himself agrees with this position, stating in his April 15, 2023 letter to the Court that he only seeks records from the Criminal Records Officer and does not consider Corporation Counsel to be a party in this special proceeding. NYSCEF Dkt. No 8. As such, Corporation Counsel is not a proper party in this proceeding. The instant case appeared before this Court on June 23, 2023, as ordered on March 6. Attorney Zachary Seider appeared as counsel for the KCDA on that date, whereupon he produced color copies of the document referred to as the Mugshot Pedigree sought by Petitioner — at least the document Petitioner appeared to be seeking despite references to the “file.” This Court deemed it appropriate to send copies of the document to Petitioner via First Class mail, thus bringing to a conclusion Petitioner’s two-years plus quest to obtain it. II. Analysis This Court notes that Petitioner wished to avoid requesting the Mugshot Pedigree from the District Attorney’s office, per his April 15, 2023 letter, based on his mistrust of it. Ironically, however, it is the KCDA which ultimately provided it. Petitioner allegedly served the Order to Show Cause upon which this action was commenced upon the Attorney General (whose office denied receiving it), and further requested in his papers that the Attorney General be ordered to provide additional items and clearer versions of the records that were sent to him. The Attorney General is not a custodian of criminal records. “Clearly, then, respondent is under no obligation to furnish petitioner with documents which [s]he does not have (see, Matter of Adams v. Hirsch, 182 AD2d 583)” (Walsh v. Wasser, 225 AD2d 911 [3d Dept 1996]). The within petition is arguably rendered moot because Petitioner received the Mugshot Pedigree he sought (see DeFreitas v. New York State Police Crime Lab, 141 AD3d 1043 [3d Dept 2016]). However, to the extent that before this Court is his request for anything else — as mentioned above it is not exactly clear whether he sought one document or a “file” — this Court must determine whether he is entitled to it in this Article 75 proceeding. Petitioner’s April 15, 2023 response to the March 6, 2023 order included statements which established that service of the Order to Show Cause and underlying papers was not properly effectuated. Petitioner stated that “Attached to this letter is a copy of the Affidavit of Service that I served upon the Attorney General in this matter” (Letter from Petitioner to Court dated April 15, 2023). The “affidavit” attached therein confirmed that Petitioner himself mailed the Order to Show Cause and supporting papers to the Office of the Attorney General via First Class mail, which was deposited in the mailbox at Sing Sing Correctional Facility on July 12, 2021. CPLR 2103 (a) provides that, “Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over” (emphasis added). Service of papers by a party, then, is improper service. The ultimate burden of proof of jurisdiction over the defendant, achieved by proving that papers were properly served, is on the plaintiff (see Frankel v. Shilling, 149 AD2d 657 [2d Dept 1989]). Here, there is no proof in the record of proper service; moreover, there is proof of improper service. “The express provisions of CPLR 2103(a) may not be ignored or overlooked any more than may the provisions of other statutes defining the methodology of service” (Miller v. Bank of N.Y. (Del.), 226 AD2d 507 [2d Dept 1996]). The Court of Appeals has held that there is a lack of personal jurisdiction where papers are served by a party to the action. (See Wein v. Thomas, 51 NY2d 862 [1980]; Munoz v. Reyes, 40 AD3d 1059 [2d 2007]; Sloan v. Knapp, 10 AD3d 434 [2d Dept 2004]; Ali v. Communicar Car Serv., 282 AD2d 413 [2d 2001].) Since Petitioner allegedly served the Attorney General by depositing copies of the Order to Show Cause and underlying papers himself into Sing Sing’s mailbox, service was a nullity. Moreover, his proof of service is inadequate because it was not in affidavit form (see CPLR 306 [d]). III. Conclusion Accordingly, it is hereby ORDERED as follows: (1) The petition for relief under Article 78 is DENIED due to lack of personal jurisdiction inasmuch as the order to show cause and underlying papers were improperly served on the Attorney General and, in any event, the Attorney General does not represent the named Respondent. (2) The within proceeding is DISMISSED and the Clerk shall issue judgment accordingly.
