Thompson v. Selsky

283 A.D.2d 752, 724 N.Y.S.2d 369, 2001 N.Y. App. Div. LEXIS 4846

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2001
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Sise, J.), entered September 21, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time barred.

After receiving an administrative determination on February 21, 2000 which found him guilty of violating a prison disciplinary rule, petitioner commenced this CPLR article 78 proceeding. Supreme Court granted respondent’s motion to dismiss the petition as barred by the Statute of Limitations because the executed order to show cause and petition were not filed in the Albany County Clerk’s office until June 26, 2000.

Given the recent decision in Matter of Grant v Senkowski (95 NY2d 605), the Attorney General notes that inasmuch as petitioner’s affidavit in support of the order to show cause, verified petition and memorandum of law were received by the court clerk on June 12, 2000, which constitutes the date of the commencement of this proceeding (see, id.), respondent is withdrawing his timeliness objection on Statute of Limitations grounds. Because respondent has not answered the petition in this matter, the judgment is vacated and the matter is remitted to Supreme Court to permit respondent to serve an answer within 45 days of this Court’s decision.

Cardona, P. J., Crew III, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court to permit respondent to serve an answer within 45 days of this Court’s decision.