Finney v. Kuhlmann , 544 N.Y.S.2d 504 ( 1989 )

Appeal from a judgment of the Supreme Court (Hanofee, J.), entered October 27, 1988 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition as barred by the Statute of Limitations.

Petitioner, an inmate acting pro se, commenced this CPLR article 78 proceeding to challenge a prison disciplinary determination. Although the petition was timely submitted to Supreme Court, the proceeding was dismissed for failure to effect service before the Statute of Limitations expired. Because service was untimely due to no fault of petitioner, respondents waive the defense of the Statute of Limitations. Accordingly, the Attorney-General concurs with petitioner’s request for reversal. The matter should be returned to Supreme Court to allow respondents to file an answer.

Judgment reversed, on the facts, without costs, and motion denied. Kane, J. P., Casey, Weiss, Levine and Mercure, JJ., concur.