Matter of Johnson v. Comm., Dept. of Corr

Full title: In the Matter of JOHNATHAN JOHNSON, Appellant, v. COMMISSIONER OF THE NEW…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 23, 1999

258 A.D.2d 395 (N.Y. App. Div. 1999)

685 N.Y.S.2d 691

Opinion

February 23, 1999

Appeal from the Supreme Court, New York County (Beverly Cohen, J.).

A prior proceeding by petitioner seeking relief identical to that requested herein terminated when Supreme Court dismissed the proceeding for petitioner's failure to join a necessary party. Petitioner's appeal from the judgment dismissing the prior proceeding, untimely taken and ultimately dismissed as such ( Matter of Johnson v. Coombe, 236 A.D.2d 669), was a nullity and thus ineffective to prolong the proceeding. Accordingly, since this proceeding was commenced more than six months subsequent to the Supreme Court judgment terminating its predecessor, it is not rendered timely by application of CPLR 205 (a) and was properly dismissed as time-barred.

Concur — Rubin, J. P., Mazzarelli, Andrias, and Saxe, JJ.