Payne v. Prack

117 A.D.3d 1251, 984 N.Y.S.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2014
• Status: Published

Opinion

Appeal from an amended judgment of the Supreme Court (Mott, J.), entered June 4, 2013 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner was found guilty of violating various prison disciplinary rules following a tier III disciplinary hearing. That determination was affirmed on administrative appeal, which petitioner received on August 27, 2012. Petitioner thereafter commenced this CPLR article 78 proceeding in Supreme Court on January 22, 2013 challenging the determination. Supreme Court granted respondent’s motion to dismiss the proceeding as untimely, and petitioner appeals.

We affirm. The record establishes that the petition was not received by the Ulster County Court Clerk until after the expiration of the four-month statute of limitations and, therefore, Supreme Court properly dismissed the petition as untimely (see Matter of Self v Fischer, 102 AD3d 1022 [2013]). Although petitioner timely filed other papers with the Ulster County Court Clerk, those papers were rejected due to defects on the forms preventing them from being filed with the Ulster County Clerk’s office. Notwithstanding petitioner’s contention to the contrary, “a proceeding such as this is deemed commenced for statute of limitations purposes on the date on which the clerk of the court actually receives the petition in valid form” (Matter of Loper v Selsky, 26 AD3d 653, 654 [2006]). As such, petitioner’s previous filings are insufficient to constitute timely filing for statute of limitations purposes.

Peters, EJ., Lahtinen, McCarthy and Egan Jr., JJ., concur.

Ordered that the amended judgment is affirmed, without costs.