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Cunningham v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 11, 2008

IN THE MATTER OF DONOVAN CUNNINGHAM, 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: Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 11, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, a prison inmate, was found guilty of violating certain prison disciplinary rules following an April 24, 2007 tier III disciplinary hearing. The Hearing Officer's decision was affirmed on administrative appeal on June 27, 2007 and petitioner received a copy of the administrative determination on June 28, 2007. He commenced this CPLR article 78 proceeding challenging the determination on November 13, 2007. Thereafter, respondents moved to dismiss the proceeding as untimely. Supreme Court granted respondents' motion and this appeal ensued.

We affirm. Petitioner's receipt on June 28, 2007 of the determination affirmed on administrative appeal rendered it final and binding, thereby triggering the four-month statute of limitations within which to commence a CPLR article 78 proceeding challenging it (see CPLR 217 [1]; Matter of Blanche v Selsky, 13 AD3d 681, 682 [2004], appeal dismissed, lv denied 4 NY3d 844 [2005]; Matter of James v Goord, 281 AD2d 825, 825 [2001], lv denied 96 NY2d 721 [2001]). The verified petition and supporting papers were not filed with the Albany County Court Clerk until November 13, 2007, at which time the proceeding was commenced (see CPLR 304; Matter of Wright v Goord, 262 AD2d 876, 876 [1999]). Inasmuch as this was beyond the four-month statutory period, Supreme Court properly dismissed the proceeding as untimely.*fn1

Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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