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Wright v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 26, 2008

IN THE MATTER OF RONALD WRIGHT, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Mercure, J.P., Carpinello, Lahtinen, Kane and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McNamara, J.), entered December 13, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, an inmate currently incarcerated in a state correctional facility, filed an application for temporary release on October 11, 2006. On November 21, 2006, he received the decision of the Temporary Release Committee denying his request. He filed an appeal of this decision with the Director of the Temporary Release Program, but it was not received until December 26, 2006. The Director refused to consider the merits of the appeal because it was not filed in a timely manner. Petitioner, in turn, commenced this CPLR article 78 proceeding. Thereafter, Supreme Court granted respondents' motion to dismiss the petition and this appeal ensued.

We affirm. The regulations governing appeals from decisions of the Temporary Release Committee provide that "[a] perfected appeal must be received within 30 days of the disapproval decision" (7 NYCRR 1900.6 [d] [emphasis added]). Petitioner's perfected appeal was not received until December 26, 2006, which was more than 30 days after November 21, 2006, the date that he claims he received the decision. Given the mandatory language of the regulations, the appeal was clearly untimely and the petition was properly dismissed.

Mercure, J.P., Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20081126

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