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Jackson v. Fischer

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


November 10, 2010

IN THE MATTER OF ANTHONY JACKSON, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 29, 2010

Before: Cardona, P.J., Peters, Rose, Stein and Garry, JJ.

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered April 14, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding seeking to challenge, as relevant here, a prison disciplinary determination rendered against him in September 2007 and the denial of his grievance alleging various civil rights deprivations. Respondent's preanswer motion to dismiss was granted by Supreme Court, which found that these challenges were time-barred. Petitioner now appeals.

We affirm. The record clearly demonstrates, and petitioner does not dispute, that the instant proceeding was commenced well after the four-month statute of limitations expired with respect to the final administrative determinations in this matter and, therefore, Supreme Court properly dismissed petitioner's application as untimely (see CPLR 217 [1]; Matter of Abreu v Hogan, 72 AD3d 1143, 1143-1144 [2010], appeal dismissed 15 NY3d 836 [2010]; Matter of Gathers v Artus, 59 AD3d 795 [2009]). To the extent that petitioner sought to challenge other disciplinary determinations in his petition, he has abandoned those claims by his failure to raise them in his brief here (see Matter of Austin v Fischer, 70 AD3d 1074, 1074 n [2010]; Matter of Gathers v Artus, 59 AD3d at 795).

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20101110

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