Bonez v. New York State Department of Correction

Appellate Division of the Supreme Court of New York

Bonez v. New York State Department of Correction

290 A.D.2d 325, 737 N.Y.S.2d 11, 2002 N.Y. App. Div. LEXIS 405

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 17, 2002

StatusPublished

Cited by1 cases

This text of 290 A.D.2d 325 (Bonez v. New York State Department of Correction) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bonez v. New York State Department of Correction, 290 A.D.2d 325, 737 N.Y.S.2d 11, 2002 N.Y. App. Div. LEXIS 405 (N.Y. Ct. App. 2002).

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Opinion

—Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered March 30, 2001, which denied the application and dismissed the petition brought pursuant to CPLR article 78 to annul two determinations adverse to petitioner following prison disciplinary hearings by respondent New York State Department of Correction, unanimously affirmed, without costs.

The instant proceeding is barred by the applicable four-month statute of limitations. The adverse determinations were rendered on September 22, 2000 and September 26, 2000, respectively. Although petitioner received communication from the court instructing him to complete the necessary papers required for filing the petition in December 2000, the order to show cause was actually filed in the clerk’s office on February 15, 2001 and an index number was assigned on that date. Accordingly, the proceeding was commenced on February 15, 2001 (see, Matter of Grant v Senkowski, 95 NY2d 605), and therefore beyond the four-month limitations period.

In any event, petitioner has stated no basis for article 78 [326]*326relief. Petitioner has provided no support for the allegations in the petition. In the absence of a record, it is impossible for this Court to perform even the limited judicial review permitted of the determinations challenged in this proceeding pursuant to CPLR article 78 (see, Matter of Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222). Concur — Ellerin, J.P., Lerner, Rubin, Buckley and Friedman, JJ.

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—Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered March 30, 2001, which denied the application and dismissed the petition brought pursuant to CPLR article 78 to annul two determinations adverse to petitioner following prison disciplinary hearings by respondent New York State Department of Correction, unanimously affirmed, without costs.

The instant proceeding is barred by the applicable four-month statute of limitations. The adverse determinations were rendered on September 22, 2000 and September 26, 2000, respectively. Although petitioner received communication from the court instructing him to complete the necessary papers required for filing the petition in December 2000, the order to show cause was actually filed in the clerk’s office on February 15, 2001 and an index number was assigned on that date. Accordingly, the proceeding was commenced on February 15, 2001 (see, Matter of Grant v Senkowski, 95 NY2d 605), and therefore beyond the four-month limitations period.

In any event, petitioner has stated no basis for article 78 [326]*326relief. Petitioner has provided no support for the allegations in the petition. In the absence of a record, it is impossible for this Court to perform even the limited judicial review permitted of the determinations challenged in this proceeding pursuant to CPLR article 78 (see, Matter of Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222). Concur — Ellerin, J.P., Lerner, Rubin, Buckley and Friedman, JJ.

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Bluebook (online)

290 A.D.2d 325, 737 N.Y.S.2d 11, 2002 N.Y. App. Div. LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonez-v-new-york-state-department-of-correction-nyappdiv-2002.

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