Allah v. Goord

252 A.D.2d 615, 673 N.Y.S.2d 953, 1998 N.Y. App. Div. LEXIS 8062

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1998
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Graffeo, J.), entered November 3, 1997 in Albany County, which, inter alia, in a proceeding pursuant to CPLR article 78, dismissed the petition as untimely.

Petitioner commenced this CPLR article 78 proceeding challenging a determination dated June 25, 1996, which petitioner alleges wrongfully recalculated his prison sentence. Thereafter, petitioner moved for a default judgment on the ground that respondents’ answer was untimely. Supreme Court denied petitioner’s motion, finding that respondents’ request for an extension of time to answer had been granted, and dismissed the petition as barred by the Statute of Limitations. Petitioner now appeals.

To the extent that petitioner contends that respondents served an untimely answer thereby warranting a default judgment, we do not find that Supreme Court acted improvidently in crediting the affidavit of respondents’ counsel averring that his request for an extension of time to answer had been granted. Moreover, inasmuch as the record reveals that petitioner filed the executed order to show cause and supporting papers well beyond the four-month Statute of Limitations period, we find that Supreme Court properly dismissed the petition (see, CPLR 217; Matter of Stephens v Strack, 249 AD2d 637). Furthermore, we agree with Supreme Court’s ruling that petitioner has failed to substantiate his claim that this proceeding is based on actions taken by respondents through November 1996.

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