Reynoso v. McGinnis

Sep 28, 2006
Versions:32 A.D.3d 1147
821 N.Y.S.2d 476

In the Matter of IGNACIO REYNOSO, Appellant, v MICHAEL MCGINNIS, as Superintendent of Southport Correctional Facility, Respondent. [821 NYS2d 476]—Appeal from a judgment of the Supreme Court (Tait, J.), entered December 28, 2005 in Chemung County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as untimely.

In August 2005, petitioner commenced a proceeding for a writ of habeas corpus challenging a determination of the Time Allowance Committee establishing his conditional release date, which was administratively affirmed on August 8, 2001. After Supreme Court converted it to a CPLR article 78 proceeding, respondent moved to dismiss the proceeding as untimely. Supreme Court granted the motion and this appeal ensued.

Pursuant to CPLR 217 (1), petitioner had four months from the date the administrative determination became final and binding on August 8, 2001 to commence a proceeding challenging it (see Matter of Acero v Sabourin, 5 AD3d 821, 822 [2004]; see also People ex rel. Miranda v Kuhlmann, 127 AD2d 924, 925 [1987], lv denied 69 NY2d 612 [1987]). As he did not do so until August 2005, Supreme Court properly dismissed it as untimely. Petitioner’s request for reconsideration did not operate to extend the statute of limitations (see Matter of Ruffin v Joy, 298 AD2d 724, 724 [2002]).

Mercure, J.P., Peters, Mugglin, Rose and Kane, JJ., concur.

Ordered that the judgment is affirmed, without costs.