IN RE: Jeffrey HIERRO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated, and respondent is granted 20 days from service of the order of this Court with notice of entry to serve and file an answer.

Memorandum: Petitioner appeals from a judgment that granted respondent's pre-answer motion to dismiss as untimely petitioner's CPLR article 78 petition seeking to annul a determination, following a tier II disciplinary hearing, that he violated an incarcerated individual rule. We reverse.

A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes “final and binding upon the petitioner” (CPLR 217 [1]). Here, the determination in question “became final and binding upon petitioner once he received notice of it” (Matter of Wiegand v. Crandall, 118 A.D.3d 1355, 1356, 987 N.Y.S.2d 747 [4th Dept. 2014]), and it was respondent's burden to “establish[ ] such date” (Matter of Feldman v. New York State Teachers’ Retirement Sys., 14 A.D.3d 769, 770, 788 N.Y.S.2d 230 [3d Dept. 2005]). As petitioner contends, and respondent correctly concedes, respondent failed to establish when petitioner actually received the results of his administrative appeal and, thus, respondent failed to meet his burden of establishing that the statute of limitations began to run more than four months prior to the commencement of the proceeding (see Matter of Mintz v. City of Rochester, 200 A.D.3d 1650, 1652, 155 N.Y.S.3d 897 [4th Dept. 2021]; cf. Feldman, 14 A.D.3d at 770, 788 N.Y.S.2d 230).

We further agree with petitioner and respondent that the court erroneously concluded that the matter was rendered moot by petitioner's release to parole; as petitioner and respondent agree, petitioner remains in the custody of the Department of Corrections and Community Supervision.