Barrett v. Coughlin

Appeal from a judgment of the Supreme Court (Bradley, J.), entered October 29, 1992 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time barred.

Petitioner, an inmate at Clinton Correctional Facility in Clinton County, had successfully challenged an April 8, 1991 determination which found him guilty of using cocaine and imposed punishment. The petition in the instant CPLR article 78 proceeding shows that Supreme Court issued an October 31, 1991 order remanding the previous matter for "full administrative evaluation of and response to all of the petitioner’s claims raised in this proceeding”. The November 27, 1991 rehearing again resulted in a determination of guilt and imposition of a lesser penalty, and was affirmed on administrative appeal. Petitioner was notified of the affirmance by letter dated January 23, 1992 and received on January 27 or 28, 1992, at which time the four-month Statute of Limitations (CPLR 217) commenced to run (see, Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832).

*654We agree that the petition was untimely and should be dismissed. Three of the four months within which to commence a proceeding expired before the pro se petition dated April 29, 1992 was mailed. Petitioner himself designated May 29, 1992 as the return date which was already beyond the expiration of the time limitation. The order to show cause signed on July 9, 1992 and served on or about July 20, 1992, returnable on August 28, 1992, was clearly untimely and therefore dismissal was proper (see, Matter of Marcelin v Coughlin, 195 AD2d 714; Matter of Hawkins v Russi, 193 AD2d 1032).

Mikoll, Yesawich Jr., Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.