Purcell v. Dennison

29 A.D.3d 1128, 814 N.Y.S.2d 787

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 2006
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Connor, J.), entered October 4, 2005 in Columbia County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time-barred.

Petitioner’s request for parole release was denied following an August 2004 hearing and the determination was upheld on administrative appeal. Petitioner received notice of the determination on January 13, 2005. Thereafter, he filed a petition and supporting papers in an effort to commence a CPLR article 78 proceeding challenging the determination, which were received by the Columbia County Clerk’s office on May 19, 2005. Respondent, in turn, moved to dismiss the proceeding as barred by the statute of limitations. Supreme Court granted the motion, resulting in this appeal.

It is undisputed that the papers necessary to commence the instant CPLR article 78 proceeding were received by the Clerk’s office after the expiration of the four-month statute of limitations, which began to run when petitioner acquired notice of the determination (see CPLR 217 [1]; 304; Matter of Loper v Selsky, 26 AD3d 653 [2006]). Inasmuch as the proceeding was clearly untimely, the petition was properly dismissed (see Matter of Acero v Sabourin, 5 AD3d 821, 822 [2004]). Although petitioner claims that he deposited the papers in the prison mail system prior to the expiration of the statute of limitations, this does not constitute sufficient compliance with the statutory requirements (see Matter of Grant v Senkowski, 95 NY2d 605, 608-609 [2001]).

Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.