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In the Matter of Miguel Harvey v. Mark Bradt

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


January 26, 2012

IN THE MATTER OF MIGUEL HARVEY, APPELLANT,
v.
MARK BRADT, AS SUPERINTENDENT OF ELMIRA CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Reynolds Fitzgerald, J.), entered April 16, 2010 in Chemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Lahtinen, Spain, Stein and Garry, JJ.

Petitioner was found guilty, following a tier III disciplinary hearing, of violating various prison disciplinary rules, and this determination was later affirmed on administrative appeal. A copy of the adverse administrative determination was delivered to petitioner at his cell on April 9, 2009. On August 11, 2009, he commenced this CPLR article 78 proceeding challenging it. In their answer, respondents raised as an objection in point of law that the proceeding was not timely commenced. Supreme Court agreed and dismissed the petition on this basis. Petitioner appeals.

We affirm. The proceeding was not commenced within four months of the date that petitioner received notice of the final and binding prison disciplinary determination (see CPLR 217 [1]; Matter of Spencer v New York State Dept. of Correctional Servs., 78 AD3d 1342, 1343 [2010]; Matter of Cunningham v Fischer, 57 AD3d 1142 [2008]). The last day of the four-month period, August 9, 2009, fell on a Sunday giving petitioner until the following day to commence a timely proceeding (see General Construction Law § 25-a [1]; Matter of Taylor v Dufrain, 278 AD2d 681, 682 [2000]). Since he did not, however, commence the proceeding until the day after that, the proceeding was untimely and Supreme Court properly dismissed the petition on that basis. Accordingly, we need not address the merits of petitioner's claims.

Mercure, Acting P.J., Lahtinen, Spain, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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