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Richard v. Poole

State of New York Supreme Court, Appellate Division Third Judicial Department


May 13, 2010

IN THE MATTER OF JOHN RICHARD, APPELLANT,
v.
THOMAS POOLE, AS SUPERINTENDENT OF FIVE POINTS CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Sackett, J.), entered November 17, 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 charged in two misbehavior reports with violating the prison disciplinary rule requiring that he accept program assignments. He was thereafter found guilty as charged, and those determinations were administratively affirmed. Petitioner then commenced this CPLR article 78 proceeding which, upon respondents' motion, Supreme Court dismissed as time barred. Petitioner appeals and we affirm.

Even if, as petitioner claims, the four-month statute of limitations did not begin to run on the first determination until the second was rendered, it commenced running for both no later than November 16, 2007, the date petitioner received notice of the latter determination (see CPLR 217 [1]; Matter of Purcell v Dennison, 29 AD3d 1128, 1128 [2006]; Matter of Loper v Selsky, 26 AD3d 653, 653-654 [2006]). This proceeding was not commenced, however, until May 15, 2008. A court may not extend the statute of limitations and, inasmuch as this proceeding was not commenced until well after it had elapsed, Supreme Court properly granted respondents' motion to dismiss (see CPLR 201; Matter of Samuels v Selsky, 289 AD2d 959 [2001]; Matter of Magat v County of Rockland, 265 AD2d 483, 483-484 [1999]).

Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100513

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