Opinion
525822
11-08-2018
In the Matter of Floyd THORNE, Appellant, v. Darwin LACLAIR, as Superintendent of Franklin Correctional Facility, Respondent.
Floyd Thorne, Johnstown, appellant pro se. Barbara D. Underwood, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Floyd Thorne, Johnstown, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 26, 2017 in Franklin County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner was charged in a misbehavior report with refusing a direct order, making threats, interfering with an employee, creating a disturbance and refusing a search or frisk. Following a tier III prison disciplinary hearing, petitioner was found guilty of the charges. On August 24, 2016, that determination was upheld upon administrative review. Thereafter, petitioner submitted several requests pursuant to the Freedom of Information Law (see Public Officers Law art 6) seeking to obtain documentary information that he viewed as relevant to challenging the determination of guilt. In December 2016, petitioner sought reconsideration of the administrative determination, and his request was denied on January 11, 2017. On May 9, 2017, petitioner commenced this CPLR article 78 proceeding challenging the determination, and respondent moved to dismiss the petition as barred by the statute of limitations. Supreme Court granted that motion, and petitioner now appeals.
We affirm. Inasmuch as petitioner did not commence this CPLR article 78 proceeding within four months of receiving the August 2016 administrative determination as required, Supreme Court properly granted respondent's motion to dismiss this proceeding as time-barred (see CPLR 217[1] ; Matter of Mercado v. Rodriguez, 153 A.D.3d 1534, 1534, 60 N.Y.S.3d 699 [2017] ; Matter of Bookman v. Annucci, 141 A.D.3d 1060, 1061, 35 N.Y.S.3d 667 [2016], lv denied 28 N.Y.3d 906, 2016 WL 6432771 [2016] ). Moreover, contrary to his contention, the statute of limitations period was not tolled or revived by either petitioner's request for reconsideration (see Matter of Savinon v. Bezio, 79 A.D.3d 1519, 1519, 912 N.Y.S.2d 456 [2010] ; Matter of De Grijze v. Goord, 260 A.D.2d 836, 836, 689 N.Y.S.2d 532 [1999] ) or his Freedom of Information Law requests (see Matter of Reeder v. Annucci, 155 A.D.3d 1142, 1143, 62 N.Y.S.3d 829 [2017] ).
ORDERED that the judgment is affirmed, without costs.
Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.