Burr v. Goord

Appellate Division of the Supreme Court of New York

Burr v. Goord

8 A.D.3d 795, 777 N.Y.S.2d 920, 2004 N.Y. App. Div. LEXIS 7939

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

DecidedJune 10, 2004

StatusPublished

This text of 8 A.D.3d 795 (Burr v. Goord) 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.

Bluebook

Burr v. Goord, 8 A.D.3d 795, 777 N.Y.S.2d 920, 2004 N.Y. App. Div. LEXIS 7939 (N.Y. Ct. App. 2004).

Pincite

Opinion

Appeal from a judgment of the Supreme Court (O’Brien, III, J.), entered October 28, 2003 in Chemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as untimely.

Petitioner, an inmate, commenced this CPLR article 78 proceeding challenging an October 22, 2002 determination affirming his placement in administrative segregation. Respondents served an answer to the petition raising as an objection in point of law that the proceeding was not timely commenced within the four-month statute of limitations set forth in CPLR 217. Supreme Court dismissed the petition on this basis, resulting in this appeal.

Respondents have indicated that because the record is unclear as to whether the proceeding is untimely, an observation with which we agree, they are waiving the statute of limitations defense and wish to proceed on the merits (see e.g. Matter of Hughes v Coughlin, 205 AD2d 857 [1994]). In view of this, the judgment must be reversed and the matter remitted to Supreme Court to address the remaining claims raised in the petition or, if appropriate, to transfer the proceeding to this Court.

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

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Appeal from a judgment of the Supreme Court (O’Brien, III, J.), entered October 28, 2003 in Chemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as untimely.

Petitioner, an inmate, commenced this CPLR article 78 proceeding challenging an October 22, 2002 determination affirming his placement in administrative segregation. Respondents served an answer to the petition raising as an objection in point of law that the proceeding was not timely commenced within the four-month statute of limitations set forth in CPLR 217. Supreme Court dismissed the petition on this basis, resulting in this appeal.

Respondents have indicated that because the record is unclear as to whether the proceeding is untimely, an observation with which we agree, they are waiving the statute of limitations defense and wish to proceed on the merits (see e.g. Matter of Hughes v Coughlin, 205 AD2d 857 [1994]). In view of this, the judgment must be reversed and the matter remitted to Supreme Court to address the remaining claims raised in the petition or, if appropriate, to transfer the proceeding to this Court.

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

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Bluebook (online)

8 A.D.3d 795, 777 N.Y.S.2d 920, 2004 N.Y. App. Div. LEXIS 7939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burr-v-goord-nyappdiv-2004.

Opinion

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