IN RE: Frank GILLARD (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Elliott III, J.), entered April 26, 2018 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Following a tier III prison disciplinary hearing, petitioner was found guilty of violating certain prison disciplinary rules and, on January 11, 2017, the determination was upheld on administrative appeal.  Petitioner filed a petition pursuant to CPLR article 78 challenging the determination.  Respondents moved to dismiss the petition contending, among other things, that the proceeding was not timely commenced.  Supreme Court issued a written decision granting respondents' motion and dismissed the petition, finding, among other deficiencies, that the proceeding was untimely.  Petitioner appeals.

We affirm.  Supreme Court correctly dismissed this CPLR article 78 proceeding as untimely.  An article 78 proceeding must be commenced within four months “after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217[1]).  “A determination generally becomes binding when the aggrieved party is notified” (Matter of Village of Westbury v. Department of Transp. of State of N.Y., 75 N.Y.2d 62, 72, 550 N.Y.S.2d 604, 549 N.E.2d 1175 [1989] [internal quotation marks and citations omitted]; accord Matter of Pinney v. Van Houten, 168 A.D.3d 1293, 1294, 92 N.Y.S.3d 468 [2019], lv dismissed and lv. denied 33 N.Y.3d 998, 101 N.Y.S.3d 729, 125 N.E.3d 145 [2019]; see Matter of Colavito v. New York State Comptroller, 130 A.D.3d 1221, 1222, 13 N.Y.S.3d 674 [2015]).  Petitioner conceded that he received a copy of the January 11, 2017 final administrative determination by January 30, 2017.  Thus, petitioner was on notice by that date, at the latest, that his administrative appeal had been denied and the determination of his guilt had been upheld, triggering the four-month statutory period within which to commence this proceeding (see CPLR 217[1]; Matter of Loper v. Selsky, 26 A.D.3d 653, 653–654, 810 N.Y.S.2d 525 [2006]).  It is undisputed that petitioner did not commence this proceeding until June 2, 2017, when he filed the petition, which was beyond the applicable four-month statutory time period (see CPLR 217[1]; 304[c] ).

Supreme Court correctly rejected petitioner's argument that his petition was timely filed based upon the five-day extension provided in CPLR 2103(b)(2).  CPLR 2103(b)(2) applies, in relevant part, to service of interlocutory papers “in a pending action” upon an adverse party's attorney, not to papers filed to commence a proceeding (see Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d 80, 82, 459 N.Y.S.2d 420, 445 N.E.2d 1099 [1983]; Matter of Community Hous. Improvement Program v. Commissioner of Labor, 166 A.D.3d 1135, 1137, 88 N.Y.S.3d 254 [2018]; Matter of Lester v. New York State Off. of Parks, Recreation & Historic Preserv., 60 A.D.3d 680, 681, 874 N.Y.S.2d 568 [2009], lv denied 12 N.Y.3d 712, 2009 WL 1586886 [2009]; compare Matter of Willoughby Nursing Home v. Axelrod, 113 A.D.2d 617, 620, 498 N.Y.S.2d 497 [1986]).  As there was no proceeding pending when petitioner belatedly filed his petition on June 2, 2017, CPLR 2103(b)(2) is inapplicable (see Matter of Fiedelman v. New York State Dept. of Health, 58 N.Y.2d at 82–83, 459 N.Y.S.2d 420, 445 N.E.2d 1099; Matter of Willoughby Nursing Home v. Axelrod, 113 A.D.2d at 620, 498 N.Y.S.2d 497).  Petitioner's remaining claims, to the extent that they are preserved for our review, are either academic or similarly lack merit.

ORDERED that the judgment is affirmed, without costs.

Egan Jr., J.P., Lynch, Clark, Mulvey and Devine, JJ., concur.