Matter of Shields v. Prack

Appellate Division of the Supreme Court of New York

Matter of Shields v. Prack

131 A.D.3d 748, 13 N.Y.S.3d 916

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

DecidedAugust 6, 2015

Docket519865

StatusPublished

Cited by3 cases

This text of 131 A.D.3d 748 (Matter of Shields v. Prack) 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

Matter of Shields v. Prack, 131 A.D.3d 748, 13 N.Y.S.3d 916 (N.Y. Ct. App. 2015).

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Opinion

Appeal from a judgment of the Supreme Court (Elliot, J.), entered June 4, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

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

We affirm. Petitioner received notification that the challenged disciplinary determinations had been administratively affirmed on February 15, 2013 and on March 12, 2013. Given that the instant proceeding was not commenced until November 21, 2013, more than four months thereafter (see CPLR 217 [1]), it was clearly time-barred (see Matter of Jackson v Fischer, 78 AD3d 1335 [2010], lv denied 16 NY3d 705 [2011]; Matter of Smith v Goord, 42 AD3d 839 [2007]). Petitioner’s request for reconsideration did not operate to toll the statute of limitations (see Matter of Savinon v Bezio, 79 AD3d 1519 [2010]; Matter of Jenkins v Goord, 288 AD2d 732, 733 [2001], appeal dismissed 97 NY2d 748 [2002]). Therefore, Supreme Court properly *749 dismissed the petition. In view of this disposition, we are foreclosed from addressing the merits of petitioner’s claims.

Peters, P.J., Garry, Egan Jr. and Lynch, JJ., concur.

Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Elliot, J.), entered June 4, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

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

We affirm. Petitioner received notification that the challenged disciplinary determinations had been administratively affirmed on February 15, 2013 and on March 12, 2013. Given that the instant proceeding was not commenced until November 21, 2013, more than four months thereafter (see CPLR 217 [1]), it was clearly time-barred (see Matter of Jackson v Fischer, 78 AD3d 1335 [2010], lv denied 16 NY3d 705 [2011]; Matter of Smith v Goord, 42 AD3d 839 [2007]). Petitioner’s request for reconsideration did not operate to toll the statute of limitations (see Matter of Savinon v Bezio, 79 AD3d 1519 [2010]; Matter of Jenkins v Goord, 288 AD2d 732, 733 [2001], appeal dismissed 97 NY2d 748 [2002]). Therefore, Supreme Court properly *749 dismissed the petition. In view of this disposition, we are foreclosed from addressing the merits of petitioner’s claims.

Peters, P.J., Garry, Egan Jr. and Lynch, JJ., concur.

Ordered that the judgment is affirmed, without costs.

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131 A.D.3d 748, 13 N.Y.S.3d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-shields-v-prack-nyappdiv-2015.

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