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

IN RE: MARK HAMMOND, Appellant, v. THOMAS LAVALLEY, as Superintendent of Clinton Correctional Facility, et al., Respondents.


    Decided: May 15, 2014

Before:  Lahtinen, J.P., Stein, Rose and Egan Jr., JJ.Mark Hammond, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondents.


Calendar Date:  April 2, 2014

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered April 30, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition as time-barred.

Petitioner commenced this CPLR article 78 proceeding seeking to challenge a determination of the Commissioner of Corrections and Community Supervision finding him guilty, after a tier III disciplinary hearing, of violating the prison disciplinary rule prohibiting lewd conduct.   In lieu of answering, respondents moved to dismiss the proceeding upon the basis that it was untimely commenced.   Supreme Court granted the motion and dismissed the petition.   This appeal ensued.

Significantly, respondents have now withdrawn their timeliness objection based upon the discovery that petitioner timely filed the petition and appropriate documentation within the four-month statute of limitations (see CPLR 217 [1] ).   Inasmuch as respondents have not had the opportunity to submit an answer, the matter must be remitted to Supreme Court for further proceedings (see Matter of Haughey v. Artus, 96 AD3d 1242, 1243 [2012] ).

Lahtinen, J.P., Stein, Rose and Egan Jr., JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, motion denied, and matter remitted to the Supreme Court to permit respondent to serve an answer within 20 days of the date of this Court's decision.


Robert D. Mayberger

Clerk of the Court

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