IN RE: Darryl WRIGHT

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

IN RE: Darryl WRIGHT, Appellant, v. Glenn S. GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: June 24, 1999

Before:  CARDONA, P.J., MERCURE, YESAWICH JR., PETERS and SPAIN, JJ. Darryl Wright, Comstock, appellant in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

Appeal from a judgment of the Supreme Court (Connor, J.), entered April 23, 1998 in Greene County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition as untimely.

 Supreme Court properly dismissed, on timeliness grounds, petitioner's challenge to the administrative determination finding him guilty of violating numerous prison disciplinary rules.   The final determination was issued on January 15, 1997 and, according to an affidavit submitted on behalf of respondents, was received by petitioner no later than January 16, 1997.   The petition and executed order to show cause were not filed with the Greene County Clerk until May 28, 1997, at which point the proceeding was commenced (see, Matter of Erdheim v. Senkowski, 239 A.D.2d 686, 687, 657 N.Y.S.2d 1015, lv. denied 91 N.Y.2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533).   Inasmuch as petitioner failed to commence the proceeding within the four-month Statute of Limitations period (see, CPLR 217), the proceeding was properly dismissed (see, Matter of Erdheim v Senkowski, supra;  Matter of Manfredi v. Coombe, 238 A.D.2d 635, 656 N.Y.S.2d 960).   To the extent that petitioner now claims that he did not receive the final determination until March 17, 1997 due to a transfer to a different correctional facility, we note that petitioner did not raise this issue in his petition or before Supreme Court and instead raises it for the first time on appeal and it is, accordingly, not preserved for appellate review (see, Matter of Germenis v. Coughlin, 232 A.D.2d 738, 739, 649 N.Y.S.2d 53).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.

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