Matter of Daniel Mercado v Glenn S. Goord

Matter of Mercado v Goord 2003 NY Slip Op 18959 [1 AD3d 845] November 26, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of Daniel Mercado, Appellant,
v
Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.

—Appeal from a judgment of the Supreme Court (Benza, J.), entered August 12, 2002 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition as time barred.

Petitioner commenced this CPLR article 78 proceeding challenging a determination that petitioner's brother, who is also a state prison inmate, not be removed from petitioner's separation list. Respondents moved to dismiss the proceeding as barred by the statute of limitations based on the belief that petitioner was challenging his transfer to another facility in 1993. Supreme Court granted the motion to dismiss and this appeal ensued. Respondents now withdraw their objection to the timeliness of the proceeding inasmuch as a further review of the record establishes that petitioner was in fact challenging a decision issued November 16, 2001 and received by petitioner on November 23, 2001, which continued the separation order of petitioner and his brother. This proceeding was received by the clerk of the court and assigned an index number on or about March 20, 2002, thereby constituting a timely commencement of the proceeding (see Matter of Ardale v Keane, 289 AD2d 661 [2001]). The judgment is therefore reversed and the matter is remitted to Supreme Court to permit respondents to serve an answer within 30 days of this Court's decision.

Cardona, P.J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court to permit respondents to serve an answer within 30 days of the date of this Court's decision.