Taylor v. Dufrain

278 A.D.2d 681, 717 N.Y.S.2d 742, 2000 N.Y. App. Div. LEXIS 13373

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2000
• Status: Published

Opinion

Spain, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Superintendent of Franklin Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination which, after a tier II hearing, found him guilty of violating a prison disciplinary rule. Respondents argue that the proceeding is untimely. We agree.

Petitioner concedes in his petition that he received the denial of his administrative appeal on April 15, 1999. Inasmuch as August 15, 1999 was a Sunday, the last day for the commencement of this proceeding within the applicable four-month Statute of Limitations (see, CPLR 217) was August 16, 1999 (see, General Construction Law § 25-a [1]). Petitioner did not verify his petition until that date, when he also mailed the petition and an unsigned copy of the order to show cause to the Franklin County Clerk’s office. The papers were not received until August 19, 1999. The order to show cause was not executed until August 27, 1999 and it was filed four days later. Petitioner does not claim that his incarceration prevented him from timely commencement or otherwise explain the delay. Therefore, the proceeding was not timely commenced (see, Matter of Wright v Goord, 262 AD2d 876; Matter of Shell v McCray, 261 AD2d 664).

Crew III, J. P., Peters, Carpinello and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs and petition dismissed.