Opinion
02-06-2015
In the Matter of Ronnie COVINGTON, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Ronnie Covington, Petitioner–Appellant Pro Se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
Ronnie Covington, Petitioner–Appellant Pro Se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
Opinion
MEMORANDUM:
Supreme Court erred in granting respondent's motion to dismiss the CPLR article 78 petition as time-barred (see CPLR 3211[a][5] ). The applicable four-month statute of limitations pursuant to CPLR 217 did not begin to run until petitioner “received notice of the final administrative determination” (Matter of Jackson v. Fischer, 67 A.D.3d 1207, 1208, 890 N.Y.S.2d 144 ; see Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 834, 470 N.Y.S.2d 130, 458 N.E.2d 371 ), and respondent failed to meet his burden of establishing that petitioner received such notice more than four months before commencing the instant proceeding (see Jackson, 67 A.D.3d at 1208, 890 N.Y.S.2d 144 ; Matter of Chrysler v. Goord, 49 A.D.3d 1342, 1343, 853 N.Y.S.2d 811 ).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the petition is reinstated.
SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, and WHALEN, JJ., concur.