WIEGAND, ERIC W. v. CRANDALL, HON. JOHN H.

118 A.D.3d 1355, 987 N.Y.S.2d 747

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2014
• Docket: OP 13-01823
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) to annul a determination of respondent. The determination revoked the pistol permit of petitioner.

It is hereby ordered that said petition is unanimously dismissed without costs.

Memorandum: petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his pistol permit. We conclude that the proceeding must be dismissed as time-barred. “A proceeding pursuant to CPLR article 78 ‘must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner’ ” (Matter of Silvestri v Hubert, 106 AD3d 924, 924-925 [2013], quoting CPLR 217 [1]). Here, respondent’s determination became final and binding upon petitioner once he received notice of it (see id. at 925). The record establishes that petitioner had notice of the determination at least by May 10, 2013, the date on which he improperly filed a notice of appeal in an attempt to seek review of respondent’s determination. This proceeding was not commenced until October 17, 2013, and thus the petition must be dismissed as time-barred (see id.; Matter of Dalton v Drago, 72 AD3d 1243, 1243 [2010]; Matter of Fowler v Marks, 241 AD2d 928, 928 [1997], lv denied 91 NY2d 801 [1997]). The fact that petitioner filed an improper notice of appeal within the four-month statute of limitations does not alter our decision (see generally CPLR 201; McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; Dalton, 72 AD3d at 1243).

Present — Centra, J.E, Lindley, Sconiers, Valentino and DeJoseph, JJ.