Covington v. Fischer

125 A.D.3d 1320, 999 N.Y.S.2d 791

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2015
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered June 6, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the petition is reinstated.

Memorandum: Supreme Court erred in granting respondent’s motion to dismiss the CPLR article 78 petition as time-barred (see CPLR 3211 [a] [5]). The applicable four-month statute of limitations pursuant to CPLR 217 did not begin to run until petitioner “received notice of the final administrative determination” (Matter of Jackson v Fischer, 67 AD3d 1207, 1208 [2009]; see Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]), and respondent failed to meet his burden of establishing that petitioner received such notice more than four months before commencing the instant proceeding (see Jackson, 67 AD3d at 1208; Matter of Chrysler v Goord, 49 AD3d 1342, 1343 [2008]). Present — Scudder, P.J., Fahey, Peradotto, Carni and Whalen, JJ.