IN RE: Wilfredo MORALES

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

IN RE: Wilfredo MORALES, Appellant, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Program for the New York State Department of Correctional Services, Respondent.

Decided: November 29, 2001

Before:  CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and ROSE, JJ. Wilfredo Morales, Attica, appellant pro se. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered February 20, 2001 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the proceeding as time barred.

Following a tier III disciplinary hearing, petitioner was found guilty of violating a prison disciplinary rule.   Upon administrative appeal, the determination was affirmed and petitioner subsequently commenced this CPLR article 78 proceeding.   Supreme Court granted respondent's motion to dismiss the proceeding as untimely commenced and this appeal ensued.

Our review of the record indicates that petitioner received notice of the adverse administrative determination on or about December 23, 1999, triggering the four-month Statute of Limitations period within which to commence a CPLR article 78 proceeding to review the determination (see, CPLR 217[1];  Matter of James v. Goord, 281 A.D.2d 825, 722 N.Y.S.2d 609, lv. denied 96 N.Y.2d 721, 733 N.Y.S.2d 373, 759 N.E.2d 372 [2001] ). Petitioner's verified petition was filed in Supreme Court on September 20, 2000 and an order to show cause was issued by the court and filed on October 6, 2000, well beyond the expiration of the limitations period (see, Matter of Grant v. Senkowski, 95 N.Y.2d 605, 610, 721 N.Y.S.2d 597, 744 N.E.2d 132;  Matter of James v. Goord, supra ).   Accordingly, we find that the proceeding was properly dismissed as time barred.   Petitioner's remaining contentions have been examined and found to be without merit.

ORDERED that the judgment is affirmed, without costs.

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