Ali v. Goord

284 A.D.2d 668, 725 N.Y.S.2d 903, 2001 N.Y. App. Div. LEXIS 6238

Opinion

—Appeal from a judgment of the Supreme Court (Teresi, J.), entered September 10, 1999 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time barred.

Following a tier III hearing, petitioner was found guilty of violating certain prison disciplinary rules. Upon administrative appeal, petitioner was informed by decision dated July 23, 1998 that the charges were affirmed. He subsequently commenced this CPLR article 78 proceeding. Supreme Court granted respondent’s motion to dismiss the petition as untimely and this appeal ensued.

Supreme Court concluded that petitioner received notice of the adverse determination on or about July 24, 1998, triggering the four-month Statute of Limitations period within which to commence a CPLR article 78 proceeding to review the determination (see, CPLR 217 [1]; Matter of Taylor v Dufrain, 278 AD2d 681). As petitioner’s proposed order to show cause and affidavit in support thereof were not received by the clerk of the court until March 23, 1999, the proceeding was not timely commenced (see, Matter of Grant v Senkowski, 95 NY2d 605; Matter of Wright v Goord, 262 AD2d 876). Moreover, even if we were to accept petitioner’s assertion that he did not receive notice of the final administrative determination until November 19, 1999, the proceeding was still time barred (see, Matter of Grant v Senkowski, supra). Accordingly, we find that the proceeding was properly dismissed as untimely.

Cardona, P. J., Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.