Richard v. Poole

Appellate Division of the Supreme Court of New York

Richard v. Poole

73 A.D.3d 1299, 899 N.Y.S.2d 910

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

DecidedMay 13, 2010

StatusPublished

This text of 73 A.D.3d 1299 (Richard v. Poole) 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

Richard v. Poole, 73 A.D.3d 1299, 899 N.Y.S.2d 910 (N.Y. Ct. App. 2010).

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Opinion

Appeal from a judgment of the Supreme Court (Sackett, J.), entered November 17, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

Petitioner, a prison inmate, was charged in two misbehavior reports with violating the prison disciplinary rule requiring that he accept program assignments. He was thereafter found guilty as charged, and those determinations were administratively affirmed. Petitioner then commenced this CPLR article 78 proceeding which, upon respondents’ motion, Supreme Court dismissed as time-barred. Petitioner appeals and we affirm.

Even if, as petitioner claims, the four-month statute of limitations did not begin to run on the first determination until the second was rendered, it commenced running for both no later than November 16, 2007, the date petitioner received notice of the latter determination (see CPLR 217 [1]; Matter of Purcell v Dennison, 29 AD3d 1128, 1128 [2006]; Matter of Loper v Selsky, 26 AD3d 653, 653-654 [2006]). This proceeding was not commenced, however, until May 15, 2008. A court may not extend the statute of limitations and, inasmuch as this proceeding was not commenced until well after it had elapsed, Supreme Court properly granted respondents’ motion to dismiss (see CPLR 201; Matter of Samuels v Selsky, 289 AD2d 959 [2001]; Matter of Magat v County of Rockland, 265 AD2d 483, 483-484 [1999]).

[1300]*1300Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Sackett, J.), entered November 17, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

Petitioner, a prison inmate, was charged in two misbehavior reports with violating the prison disciplinary rule requiring that he accept program assignments. He was thereafter found guilty as charged, and those determinations were administratively affirmed. Petitioner then commenced this CPLR article 78 proceeding which, upon respondents’ motion, Supreme Court dismissed as time-barred. Petitioner appeals and we affirm.

Even if, as petitioner claims, the four-month statute of limitations did not begin to run on the first determination until the second was rendered, it commenced running for both no later than November 16, 2007, the date petitioner received notice of the latter determination (see CPLR 217 [1]; Matter of Purcell v Dennison, 29 AD3d 1128, 1128 [2006]; Matter of Loper v Selsky, 26 AD3d 653, 653-654 [2006]). This proceeding was not commenced, however, until May 15, 2008. A court may not extend the statute of limitations and, inasmuch as this proceeding was not commenced until well after it had elapsed, Supreme Court properly granted respondents’ motion to dismiss (see CPLR 201; Matter of Samuels v Selsky, 289 AD2d 959 [2001]; Matter of Magat v County of Rockland, 265 AD2d 483, 483-484 [1999]).

[1300]*1300Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

73 A.D.3d 1299, 899 N.Y.S.2d 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-poole-nyappdiv-2010.

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