Ardale v. Keane ( 2001 )

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered November 28, 2000 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition as time barred.

Petitioner commenced this CPLR article 78 proceeding challenging a December 21, 1999 determination finding him guilty of violating various prison disciplinary rules. Supreme Court granted respondents’ motion to dismiss the petition as barred by the Statute of Limitations. This appeal ensued. In light of the Court of Appeals’ decision in Matter of Grant v Senkowski (95 NY2d 605), rendered after Supreme Court’s decision, respondents have withdrawn their timeliness objection inasmuch as the record establishes that the petition and affidavit in support of an order to show cause were received by the court clerk and assigned an index number on April 20, 1999, thereby constituting the date of commencement of this proceeding (see, id.; Matter of Thompson v Selsky, 283 AD2d 752). The judgment is therefore reversed and the matter is remitted to Supreme Court to permit respondents to serve an answer within 45 days of this Court’s decision.

Crew III, J. P., Peters, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court to permit respondents to serve an answer within 45 days of the date of this decision.