Matter of Oresta Arosena v New York State Division of Parole

Matter of Arosena v New York State Div. of Parole 2004 NY Slip Op 08779 [12 AD3d 1019] November 24, 2004 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

In the Matter of Oresta Arosena, Appellant, v New York State Division of Parole, Respondent.

—[*1]Appeal from a judgment of the Supreme Court (Cannizzaro, J.), entered May 5, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition as time-barred.

Petitioner commenced this CPLR article 78 proceeding to review a determination denying his request for parole release. Respondent moved to dismiss the proceeding as barred by the statute of limitations. Supreme Court granted the motion and this appeal ensued.

Respondent now withdraws its timeliness objection. The record establishes that petitioner received notice of the final appeal determination on September 16, 2003 and the petition and supporting papers were received by the Albany County Clerk's office on January 16, 2004. The proceeding was, therefore, commenced within the four-month statute of limitations period (see CPLR 217; Matter of Grant v Senkowski, 95 NY2d 605, 610 [2001]). Because respondent has not yet answered the petition in this matter, the judgment is reversed and the matter remitted to Supreme Court to permit respondent to serve an answer within 30 days of this Court's decision (see Matter of Cepeda v Goord, 295 AD2d 838 [2002]).

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. [*2]Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court to permit respondent to serve an answer within 30 days of the date of this Court's decision.