Matter of Nisbett v. Prack

Appellate Division of the Supreme Court of New York

Matter of Nisbett v. Prack

133 A.D.3d 951, 18 N.Y.S.3d 568

Appellate Division of the Supreme Court of the State of New York·Decided November 5, 2015·No. 520196·Published

Opinion

Appeal from a judgment of the Supreme Court (Cahill, J.), entered November 26, 2014 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. Respondent moved to dismiss the petition on the ground that the proceeding was not commenced within the four-month statute of limitations pursuant to CPLR 217 (1). Supreme Court granted the motion and petitioner now appeals.

We affirm. Petitioner acknowledges that he was notified on April 11, 2014 that the determination had been administratively affirmed. The record establishes that the petition was not filed until September 4, 2014. Given that the instant proceeding was not commenced within the applicable four-month statute of limitations (see CPLR 217 [1]), Supreme Court properly dismissed the petition as time-barred (see Matter of Stevenson v Prack, 120 AD3d 1465, 1466 [2014]).

Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Cahill, J.), entered November 26, 2014 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. Respondent moved to dismiss the petition on the ground that the proceeding was not commenced within the four-month statute of limitations pursuant to CPLR 217 (1). Supreme Court granted the motion and petitioner now appeals.

We affirm. Petitioner acknowledges that he was notified on April 11, 2014 that the determination had been administratively affirmed. The record establishes that the petition was not filed until September 4, 2014. Given that the instant proceeding was not commenced within the applicable four-month statute of limitations (see CPLR 217 [1]), Supreme Court properly dismissed the petition as time-barred (see Matter of Stevenson v Prack, 120 AD3d 1465, 1466 [2014]).

Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed, without costs.

Matter of Nisbett v. Prack, 133 A.D.3d 951, 18 N.Y.S.3d 568 (N.Y. Ct. App. 2015).

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Opinion

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