Timmers v. New York State Division of Parole

Appellate Division of the Supreme Court of New York

Timmers v. New York State Division of Parole

43 A.D.3d 1226, 842 N.Y.S.2d 608

Appellate Division of the Supreme Court of the State of New York·Decided September 13, 2007·Published

Opinion

Appeal from a judgment of the Supreme Court (Stein, J.), entered March 7, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as untimely.

[1227]*1227Following the denial of petitioner’s application for a writ of habeas corpus (see People ex rel. Timmers v Mellas, 27 AD3d 1179 [2006], lv denied 7 NY3d 702 [2006]), he commenced this CPLR article 78 proceeding challenging the revocation of his parole. Supreme Court dismissed the proceeding as untimely, prompting this appeal.

We affirm. The proceeding herein was not commenced until long after the applicable four-month statute of limitations had expired (see CPLR 217 [1]; Matter of Acero v Sabourin, 5 AD3d 821, 822 [2004]) and, contrary to petitioner’s assertion, the circumstances of this case do not afford him relief pursuant to CPLR 205 (a). Thus, respondent’s motion to dismiss was properly granted.

Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Stein, J.), entered March 7, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as untimely.

[1227]*1227Following the denial of petitioner’s application for a writ of habeas corpus (see People ex rel. Timmers v Mellas, 27 AD3d 1179 [2006], lv denied 7 NY3d 702 [2006]), he commenced this CPLR article 78 proceeding challenging the revocation of his parole. Supreme Court dismissed the proceeding as untimely, prompting this appeal.

We affirm. The proceeding herein was not commenced until long after the applicable four-month statute of limitations had expired (see CPLR 217 [1]; Matter of Acero v Sabourin, 5 AD3d 821, 822 [2004]) and, contrary to petitioner’s assertion, the circumstances of this case do not afford him relief pursuant to CPLR 205 (a). Thus, respondent’s motion to dismiss was properly granted.

Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Timmers v. New York State Division of Parole, 43 A.D.3d 1226, 842 N.Y.S.2d 608 (N.Y. Ct. App. 2007).

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Opinion

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