Cepeda v. Goord

Appellate Division of the Supreme Court of New York

Cepeda v. Goord

295 A.D.2d 838, 743 N.Y.S.2d 905, 2002 N.Y. App. Div. LEXIS 6799

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

DecidedJune 27, 2002

StatusPublished

Cited by1 cases

This text of 295 A.D.2d 838 (Cepeda 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

Cepeda v. Goord, 295 A.D.2d 838, 743 N.Y.S.2d 905, 2002 N.Y. App. Div. LEXIS 6799 (N.Y. Ct. App. 2002).

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Opinion

Spain, J.

Appeal from a judgment of the Supreme Court (Aulisi, J.), entered September 12, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time barred.

Petitioner commenced this CPLR article 78 proceeding challenging an April 11, 2000 determination finding him guilty of violating a prison disciplinary rule prohibiting inmates from refusing an order. Supreme Court granted respondent’s motion to dismiss the petition as barred by the statute of limitations. This appeal ensued. In light of the Court of Appeals’ decision in Matter of Grant v Senkowski (95 NY2d 605), rendered after Supreme Court’s decision, respondent has withdrawn his timeliness objection inasmuch as the record establishes that the notice of petition and the petition were received by the Court Clerk and assigned an index number on August 8, 2000, thereby constituting the date of commencement of this proceeding (see, id. at 610; Matter of Ardale v Keane, 289 AD2d 661). The judgment is therefore reversed and the matter is remitted to Supreme Court to permit respondent to serve an answer within 30 days of this Court’s decision (see, Matter of Thompson v Selsky, 283 AD2d 752).

Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court to permit respondent to serve an answer within 30 days of the date of this decision.

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Spain, J.

Appeal from a judgment of the Supreme Court (Aulisi, J.), entered September 12, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time barred.

Petitioner commenced this CPLR article 78 proceeding challenging an April 11, 2000 determination finding him guilty of violating a prison disciplinary rule prohibiting inmates from refusing an order. Supreme Court granted respondent’s motion to dismiss the petition as barred by the statute of limitations. This appeal ensued. In light of the Court of Appeals’ decision in Matter of Grant v Senkowski (95 NY2d 605), rendered after Supreme Court’s decision, respondent has withdrawn his timeliness objection inasmuch as the record establishes that the notice of petition and the petition were received by the Court Clerk and assigned an index number on August 8, 2000, thereby constituting the date of commencement of this proceeding (see, id. at 610; Matter of Ardale v Keane, 289 AD2d 661). The judgment is therefore reversed and the matter is remitted to Supreme Court to permit respondent to serve an answer within 30 days of this Court’s decision (see, Matter of Thompson v Selsky, 283 AD2d 752).

Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court to permit respondent to serve an answer within 30 days of the date of this decision.

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Bluebook (online)

295 A.D.2d 838, 743 N.Y.S.2d 905, 2002 N.Y. App. Div. LEXIS 6799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cepeda-v-goord-nyappdiv-2002.

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