Opinion
September 8, 1986
Appeal from the Supreme Court, Westchester County (Isseks, J.).
Order entered April 23, 1985, affirmed insofar as reviewed, without costs or disbursements.
Although this proceeding would not be time barred if designated a habeas corpus proceeding (see, People ex rel. Menechino v Warden, 27 N.Y.2d 376), the remedy of habeas corpus is not available to this petitioner because he will not be entitled to immediate release as he is now incarcerated due to a subsequent felony conviction, which also served as the basis for one of the parole violation charges lodged against him (see, People ex rel. Mendolia v Superintendent, 47 N.Y.2d 779; People ex rel. Linares v Dalsheim, 107 A.D.2d 728). If the proceeding is treated as an application pursuant to CPLR article 78 to review and set aside the determination of the New York State Division of Parole to revoke the petitioner's parole, the proceeding is barred by the four-month Statute of Limitations (CPLR 217; People ex rel. Linares v Dalsheim, supra; Matter of Abdullah v Hammock, 111 A.D.2d 753, 754; Matter of Soto v New York State Bd. of Parole, 107 A.D.2d 693, affd 66 N.Y.2d 817). The period of limitation commenced to run on the date the determination of the Division became final and binding (see, Matter of Biondo v New York State Bd. of Parole, 60 N.Y.2d 832; Matter of Abdullah v Hammock, supra, at p 754), which occurred on or about January 2, 1981, when the petitioner undisputedly received notice that his administrative appeal had been dismissed for failure to timely perfect. Since this proceeding was not commenced until September 1984, Special Term properly dismissed it as time barred.
In any case, by having failed to exhaust available administrative remedies (see, Executive Law § 259-i; 9 NYCRR 8006.1, 8006.2 [a]; 8006.3 [b] [2]), the petitioner is barred from seeking relief under CPLR article 78 (see, Matter of Pina v Hammock, 89 A.D.2d 799; cf. Matter of Flemming v Cagliostro, 53 A.D.2d 187, 189). Brown, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.