IN RE: Application of Johnathan JOHNSON (1999)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Johnathan JOHNSON, Petitioner-Appellant, For Relief Pursuant to Article 78, etc., v. COMMISSIONER OF the NYC DEPARTMENT OF CORRECTIONS, et al., Respondents-Respondents.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS, SAXE, JJ.

Petitioner-Appellant, Pro Se. Steven L. Banks, for Respondents-Respondents.

Order, Supreme Court, New York County (Beverly Cohen, J.), entered on or about August 26, 1997, which dismissed as time-barred the petition, brought pursuant to CPLR article 78, challenging the refusal by respondent Commissioner of the State Department of Correctional Services to re-calculate petitioner's jail time credits, unanimously affirmed, without costs.

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, 654 N.Y.S.2d 832), 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.

MEMORANDUM DECISION.

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