Matter of Hayes v Evans

Matter of Matter of Hayes v Evans 2012 NY Slip Op 06344 Decided on September 27, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 27, 2012
513476

[*1]In the Matter of LAWRENCE HAYES, Appellant,

v

ANDREA W. EVANS, as Chair of the New York State Division of Parole, Respondent.

Calendar Date: September 14, 2012
Before: Mercure, J.P., Malone Jr., McCarthy, Garry and Egan Jr., JJ.


Philip M. Genty, New York City, for appellant.
Eric T. Schneiderman, Attorney General, Albany
(Laura Etlinger of counsel), for respondent.

MEMORANDUM AND ORDER



Malone Jr., J.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered September 30, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Following the denial of petitioner's application for discharge from parole pursuant to Executive Law § 259-j, petitioner commenced this CPLR article 78 proceeding challenging the determination. Supreme Court granted respondent's motion to dismiss the petition as time-barred and this appeal ensued.

We affirm. A challenge to an administrative determination must be commenced within four months after the determination becomes final and binding (see Matter of Feldman v New York State Teachers' Retirement Sys., 14 AD3d 769 [2005]). "Generally, the statute of limitations begins to run when the party receives oral or written notice, or when the party knows or should have known, of the adverse determination" (Matter of Singer v New York State & Local Employees' Retirement Sys., 69 AD3d 1037, 1038 [2010] [citations omitted]). Here, there is no dispute that petitioner's parole officer verbally informed petitioner in December 2010 that [*2]his application for discharge was denied, at which point the four-month statute of limitations began to run. Given that petitioner did not commence this CPLR article 78 proceeding until May 2011, the petition was properly dismissed as untimely. To the extent that petitioner asserts that the statute of limitations did not begin to run until his counsel received notification of the determination in April 2011, we note that, unlike Matter of Bianca v Frank (43 NY2d 168, 173 [1977]), petitioner was not represented by counsel until after the administrative determination became final and binding. Petitioner's remaining contentions are either unpreserved for our review or without merit.

Mercure, J.P., McCarthy, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.