De Grijze v. Goord

260 A.D.2d 836, 689 N.Y.S.2d 532, 1999 N.Y. App. Div. LEXIS 4023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1999
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Keegan, J.), entered June 9, 1998 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition as time barred.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a September 20, 1997 determination which found him guilty of violating various prison disciplinary rules following a tier II disciplinary hearing. Supreme Court granted respondents’ motion to dismiss the proceeding as barred by the Statute of Limitations and we affirm.

The determination was affirmed by respondent Superintendent on September 30, 1997. While petitioner also sought administrative review of the initial determination from respondent Commissioner of Correctional Services, the Commissioner informed him on September 26, 1997 that review at that level was unavailable. Thereafter, on October 10, 1997, in response to petitioner’s “letter of reconsideration”, the Commissioner again stated that “[t]here will be no review at this level”.

Contrary to petitioner’s contention on appeal, his request for reconsideration did not toll the four-month Statute of Limitations period (see, Matter of Arce v Selsky, 233 AD2d 641, 642). Accordingly, given that the order to show cause was not signed until March 2, 1998, well beyond the four-month Statute of Limitations period (see, CPLR 217), Supreme Court properly dismissed the proceeding as time barred.

Mercure, J. P., Peters, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.