Jackson v. Fischer

Appellate Division of the Supreme Court of New York

Jackson v. Fischer

78 A.D.3d 1335, 909 N.Y.S.2d 681

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

DecidedNovember 10, 2010

StatusPublished

Cited by1 cases

This text of 78 A.D.3d 1335 (Jackson v. Fischer) 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

Jackson v. Fischer, 78 A.D.3d 1335, 909 N.Y.S.2d 681 (N.Y. Ct. App. 2010).

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Opinion

Appeal from a judgment of the Supreme Court (O’Connor, J.), entered April 14, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding seeking to challenge, as relevant here, a prison disciplinary determination rendered against him in September 2007 and the denial of his grievance alleging various civil rights deprivations. Respondent’s pre-answer motion to dismiss was granted by Supreme Court, which found that these challenges were time-barred. Petitioner now appeals.

We affirm. The record clearly demonstrates, and petitioner does not dispute, that the instant proceeding was commenced well after the four-month statute of limitations expired with respect to the final administrative determinations in this matter and, therefore, Supreme Court properly dismissed petitioner’s application as untimely (see CPLR 217 [1]; Matter of Abreu v Hogan, 72 AD3d 1143, 1143-1144 [2010], appeal dismissed 15 NY3d 836 [2010]; Matter of Gathers v Artus, 59 AD3d 795 [2009]). To the extent that petitioner sought to challenge other disciplinary determinations in his petition, he has abandoned those claims by his failure to raise them in his brief here (see Matter of Austin v Fischer, 70 AD3d 1074, 1074 n [2010]; Matter of Gathers v Artus, 59 AD3d at 795).

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

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Appeal from a judgment of the Supreme Court (O’Connor, J.), entered April 14, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding seeking to challenge, as relevant here, a prison disciplinary determination rendered against him in September 2007 and the denial of his grievance alleging various civil rights deprivations. Respondent’s pre-answer motion to dismiss was granted by Supreme Court, which found that these challenges were time-barred. Petitioner now appeals.

We affirm. The record clearly demonstrates, and petitioner does not dispute, that the instant proceeding was commenced well after the four-month statute of limitations expired with respect to the final administrative determinations in this matter and, therefore, Supreme Court properly dismissed petitioner’s application as untimely (see CPLR 217 [1]; Matter of Abreu v Hogan, 72 AD3d 1143, 1143-1144 [2010], appeal dismissed 15 NY3d 836 [2010]; Matter of Gathers v Artus, 59 AD3d 795 [2009]). To the extent that petitioner sought to challenge other disciplinary determinations in his petition, he has abandoned those claims by his failure to raise them in his brief here (see Matter of Austin v Fischer, 70 AD3d 1074, 1074 n [2010]; Matter of Gathers v Artus, 59 AD3d at 795).

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

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Bluebook (online)

78 A.D.3d 1335, 909 N.Y.S.2d 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-fischer-nyappdiv-2010.

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