Summary
dismissing an Article 78 petition filed after the four-month limitations period passed as time-barred
Summary of this case from Plater v. SuperintendentOpinion
May 10, 2001.
Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 30, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition as time barred.
Daniel Lynch, Attica, appellant in person.
Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.
Before: Crew III, J.P., Peters, Spain, Mugglin and Rose, JJ.
MEMORANDUM AND ORDER
Petitioner commenced this proceeding challenging a determination withholding one year of good-time credit based upon a tier III disciplinary hearing. Supreme Court granted respondent's motion to dismiss the proceeding as untimely commenced (see, CPLR 217) and this appeal ensued. Our review of the record reveals that petitioner's proposed order to show cause and supporting papers were not received by the clerk of the court until after the four-month Statute of Limitations period expired and, thus, were "not timely filed even under the procedure for commencement of actions and proceedings by indigent prison inmates established in CPLR 1101 (f)" (Matter of Grant v. Senkowski, 95 N.Y.2d 605, 610). Accordingly, we find that the proceeding was properly dismissed as time barred.
ORDERED that the judgment is affirmed, without costs.