IN RE: Jason GRANT (2000)

Appeal from a judgment of the Supreme Court (Canfield, J.), entered May 10, 1999 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition as time barred.

Petitioner, a prison inmate, brought this CPLR article 78 proceeding to challenge a determination finding him guilty of violating a prison disciplinary rule prohibiting possession of a weapon.   Supreme Court granted respondents' motion to dismiss the petition on Statute of Limitations grounds.   Petitioner appeals and we affirm.

 Supreme Court correctly found that petitioner received notice of the determination no later than June 25, 1998 and, pursuant to CPLR 217(1), had four months in which to commence the proceeding (see, Matter of Shell v. McCray, 261 A.D.2d 664, 690 N.Y.S.2d 305).   Petitioner did not commence the proceeding, however, until November 10, 1998, when the order to show cause and petition were filed with the Albany County Clerk.   Petitioner's placement of the unsigned order to show cause and petition in the facility mailbox only five days prior to the expiration of the Statute of Limitations was clearly insufficient, and we conclude that the proceeding was properly dismissed as untimely (see, Matter of Marcus v. New York State Div. of Parole, 264 A.D.2d 919, 696 N.Y.S.2d 101;  Matter of Shell v. McCray, supra ).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.