Matter of Cunningham v Fischer

Matter of Cunningham v Fischer 2008 NY Slip Op 09682 [57 AD3d 1142] December 11, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

mIn the Matter of Donovan Cunningham, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.

—[*1] Donovan Cunningham, Auburn, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 11, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, a prison inmate, was found guilty of violating certain prison disciplinary rules following an April 24, 2007 tier III disciplinary hearing. The Hearing Officer's decision was affirmed on administrative appeal on June 27, 2007 and petitioner received a copy of the administrative determination on June 28, 2007. He commenced this CPLR article 78 proceeding challenging the determination on November 13, 2007. Thereafter, respondents moved to dismiss the proceeding as untimely. Supreme Court granted respondents' motion and this appeal ensued.

We affirm. Petitioner's receipt on June 28, 2007 of the determination affirmed on administrative appeal rendered it final and binding, thereby triggering the four-month statute of limitations within which to commence a CPLR article 78 proceeding challenging it (see CPLR 217 [1]; Matter of Blanche v Selsky, 13 AD3d 681, 682 [2004], appeal dismissed and lv denied 4 NY3d 844 [2005]; Matter of James v Goord, 281 AD2d 825, 825 [2001], lv denied 96 NY2d 721 [2001]). The verified petition and supporting papers were not filed with the Albany County Court Clerk until November 13, 2007, at which time the proceeding was commenced (see CPLR 304; Matter of Wright v Goord, 262 AD2d 876, 876 [1999]). Inasmuch as this was beyond the [*2]four-month statutory period, Supreme Court properly dismissed the proceeding as untimely.[FN*]

Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs. Footnotes

Footnote *: Contrary to petitioner's contention, the filing of an application pursuant to CPLR 1101 without the verified petition was insufficient to commence the proceeding.