Lebron v. Travis , 822 N.Y.S.2d 470 ( 2006 )

Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 27, 2006, in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as untimely.

Petitioner is serving an aggregate sentence of 22 years in prison for his convictions of manslaughter in the first degree and robbery in the first degree. He commenced this CPLR article 78 proceeding challenging a determination denying his request for parole release but, upon objection by respondent, the petition was dismissed as barred by the statute of limitations. This appeal by petitioner ensued.

Respondent now withdraws its timeliness objection based upon record evidence that the petition and supporting papers were received by the Albany County Clerk within the four-month limitations period (see CPLR 217; Matter of Grant v Senkowski, 95 NY2d 605, 610 [2001]). Because respondent has not yet answered the petition in this matter, the judgment is reversed and the matter is remitted to Supreme Court to permit respondent to serve an answer within 30 days of the date of this Court’s decision (see Matter of Arosena v New York State Div. of Parole, 12 AD3d 1019, 1019 [2004]).

Cardona, P.J., Spain, Mugglin, Lahtinen and Kane, 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 30 days of the date of this Court’s decision.