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In the Matter of Esteban Savinon v. Norman Bezio

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


December 23, 2010

IN THE MATTER OF ESTEBAN SAVINON, APPELLANT,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered April 5, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: November 3, 2010

Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and Egan Jr., JJ.

Following a prison disciplinary hearing, petitioner was found guilty of committing an unhygienic act and engaging in lewd conduct. On June 9, 2009, the determination was modified on administrative appeal and one of the charges was dismissed. Petitioner received the administrative determination on June 10, 2009. He commenced this CPLR article 78 proceeding challenging it on October 29, 2009. Respondent moved to dismiss the proceeding as barred by the statute of limitations. Supreme Court granted the motion, resulting in this appeal.

We affirm. It is undisputed that petitioner did not commence the instant proceeding within four months of receiving the administrative determination as required (see CPLR 217 [1]; see also Matter of Cunningham v Fischer, 57 AD3d 1142 [2008]; Matter of Loper v Selsky, 26 AD3d 653, 653-654 [2006]). Notably, his request for reconsideration did not toll the statute of limitations (see Matter of DeGrijze v Goord, 260 AD2d 836 [1999]; Matter of Arce v Selsky, 233 AD2d 641, 642 [1996]). Moreover, he has not demonstrated how the alleged mistake in the misbehavior report prejudiced him and contributed to his late filing of the petition. Therefore, Supreme Court properly dismissed the petition.

Cardona, P.J., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20101223

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