Claim of Morillo v. Selsky , 766 N.Y.S.2d 151 ( 2003 )

Appeal from a judgment of the Supreme Court (Berke, J.), entered August 19, 2002 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition as time-barred.

Petitioner commenced this CPLR article 78 proceeding challenging an administrative determination dated December 3, 2001 finding him guilty of violating certain prison disciplinary rules. Supreme Court granted respondent’s subsequent motion to dismiss the petition as barred by the statute of limitations because the petition was not received until May 15, 2002. This appeal by petitioner ensued.

Petitioner asserts that he mailed the original petition and supporting papers on February 12, 2002. It was not until March 25, 2002, in response to a letter sent by petitioner, that he was informed by the Chief Court Clerk that his petition and supporting papers were never received. Despite having sufficient time to resubmit the petition and supporting papers prior to the expiration of the statute of limitations period on April 8, 2002, petitioner failed to commence the proceeding until May 15, 2002. Under these circumstances, we find no reason to disturb Supreme Court’s dismissal of the petition. To the extent that petitioner relies upon Houston v Lack (487 US 266 [1988]) in support of his contention that his papers should have been deemed filed when given to prison officials for mailing, the Court of Appeals has rejected the application of any such “mailbox rule” (see Matter of Grant v Senkowski, 95 NY2d 605 [2001]).

Mercure, J.P., Crew III, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.