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In the Matter of Donald Self v. Brian Fischer

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


January 17, 2013

IN THE MATTER OF DONALD SELF, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered March 14, 2012 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: December 17, 2012

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

Petitioner, a prison inmate, was found guilty of violating a prison disciplinary rule following a March 3, 2011 tier III disciplinary hearing. This determination was affirmed on administrative review on May 10, 2011 and petitioner received a copy of the administrative determination on May 12, 2011. He commenced this CPLR article 78 proceeding challenging the determination in Supreme Court on October 21, 2011. Supreme Court granted respondent's motion to dismiss the proceeding as untimely, and petitioner appeals.

We affirm. Petitioner's receipt of respondent's final determination on May 12, 2011 triggered the four-month statute of limitations period within which to commence a CPLR article 78 proceeding challenging the determination (see CPLR 217 [1]; Matter of Cunningham v Fischer, 57 AD3d 1142, 1142 [2008]). Although petitioner attempted to commence this proceeding in this Court by an order to show cause in September 2011, a CPLR article 78 proceeding must be commenced in Supreme Court, with some statutory exceptions not applicable here (see CPLR 506 [b] [1],

[4]; 7804 [b]; Matter of Reitman v Sobol, 225 AD2d 823, 823 [1996]). Inasmuch as the petition was not received by the Albany County Court Clerk until October 21, 2011, after the four-month statutory period had expired, Supreme Court properly dismissed the petition as untimely (see Matter of Loper v Selsky, 26 AD3d 653, 654 [2006]; Matter of Blanche v Selsky, 13 AD3d 681, 682 [2004], appeal dismissed, lv denied 4 NY3d 844 [2005]).

Mercure, J.P., Rose, Spain, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130117

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