Opinion
2012-08-2
In the Matter of Philip ROBINSON, Appellant, v. Sergeant Bruce H. FOREMAN, et al., Respondents.
Philip Robinson, Stormville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.
Philip Robinson, Stormville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.
Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.
Appeal from a judgment of the Supreme Court (Devine, J.), entered September 6, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.
Following petitioner's removal from his program assignment as a baker in the mess hall due to poor performance, he filed a grievance challenging his removal from his mess hall position, as well as requesting reinstatement to the program and the removal from his institutional file of any false information pertaining to the incident. By decision dated December 23, 2009, the Central Office Review Committee ultimately affirmed the determination of respondent Superintendent of Green Haven Correctional Facility to the extent that it upheld his removal from the program. As for petitioner's requests regarding reinstatement and expungement of information from his institutional file, the Central Office Review Committee advised petitioner of the proper procedure to address such issues. Thereafter, petitioner commenced this CPLR article 78 proceeding in March 2011. Supreme Court granted respondents' pre-answer motion to dismiss the petition as time-barred and this appeal ensued.
We affirm. The record clearly demonstrates that this CPLR article 78 proceeding was commenced more than four months after the administrative determination became final and binding ( seeCPLR 217[1]; see also Matter of Jackson v. Fischer, 78 A.D.3d 1335, 909 N.Y.S.2d 681 [2010],lv. denied16 N.Y.3d 705, 2011 WL 536609 [2011] ). Accordingly, the petition was properly dismissed. Petitioner's continued inquiries regarding his reinstatement to the program and the accuracy of his records “did not toll the statute of limitations or constitute a further administrative step in the grievance process” (Matter of Detorres v. Goord, 40 A.D.3d 1306, 1307, 834 N.Y.S.2d 492 [2007] ).
ORDERED that the judgment is affirmed, without costs.