Klein v. New York State Education Department , 418 N.Y.S.2d 198 ( 1979 )

— Proceeding initiated in this court, pursuant to subdivision 4 of section 6510 of the Education Law, to annul an order of the Commissioner of Education revoking petitioner’s license to practice pharmacy in the State of New York. The petitioner and the corporate holder of the pharmacy certificate issued to Sy-Art Pharmacy, Incorporated, were found guilty of fraud and unprofessional conduct in the practice of pharmacy. Petitioner’s license as a pharmacist was revoked and the certificate of registration as a pharmacy issued to Sy-Art Pharmacy, Incorporated, was canceled.^* The order of the Commissioner of Education was issued on January 30, 1978 and was served on petitioner on February 9, 1978. The petition instituting the article 78 proceeding is dated July 14, 1978 and was served on respondents on July 19, 1978, some five months after the order became final. Respondents contend that this proceeding was not timely commenced. We agree. CPLR 217 requires that, unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. This petition must, therefore, be dismissed as untimely. We note, despite the dismissal for lack of timeliness, that the appeal is otherwise without merit. Petition dismissed, without costs. Greenblott, J. P., Staley, Jr., Main, Mikoll and Herlihy, JJ., concur.

* Petitioner has withdrawn his petition as relates to the registration certificate of the Sy-Art Pharmacy, Incorporated.