Huber v. Selsky

Appellate Division of the Supreme Court of New York

Huber v. Selsky

284 A.D.2d 676, 726 N.Y.S.2d 306, 2001 N.Y. App. Div. LEXIS 6225

Appellate Division of the Supreme Court of the State of New York·Decided June 14, 2001·Published·Cited by 3 cases

Opinion

—Appeal from a judgment of the Supreme Court (Lamont, J.), entered May 22, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as time barred.

Petitioner commenced this proceeding challenging a determination finding him guilty of violating various prison disciplinary rules. Supreme Court dismissed the proceeding as untimely commenced (see, CPLR 217 [1]) and this appeal ensued. Our review of the record reveals that petitioner’s affidavit in support of the order to show cause and verified petition were not received by the clerk of the court until the day after the four-month Statute of Limitations period expired. Thus, the papers were “not timely filed even under the procedure for commencement of actions and proceedings by indigent prison inmates established in CPLR 1101 (f)” (Matter of Grant v Senkowski, 95 NY2d 605, 610). Accordingly, we find that the proceeding was properly dismissed as time barred. Petitioner’s remaining contentions have been examined and found to be without merit.

Cardona, P. J., Peters, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Lamont, J.), entered May 22, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as time barred.

Petitioner commenced this proceeding challenging a determination finding him guilty of violating various prison disciplinary rules. Supreme Court dismissed the proceeding as untimely commenced (see, CPLR 217 [1]) and this appeal ensued. Our review of the record reveals that petitioner’s affidavit in support of the order to show cause and verified petition were not received by the clerk of the court until the day after the four-month Statute of Limitations period expired. Thus, the papers were “not timely filed even under the procedure for commencement of actions and proceedings by indigent prison inmates established in CPLR 1101 (f)” (Matter of Grant v Senkowski, 95 NY2d 605, 610). Accordingly, we find that the proceeding was properly dismissed as time barred. Petitioner’s remaining contentions have been examined and found to be without merit.

Cardona, P. J., Peters, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.

Huber v. Selsky, 284 A.D.2d 676, 726 N.Y.S.2d 306, 2001 N.Y. App. Div. LEXIS 6225 (N.Y. Ct. App. 2001).

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