Brooks v. Connolly

Appeal from a judgment of the Supreme Court (Devine, J.), entered May 10, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition. Petitioner, an inmate currently housed at Gowanda Correctional Facility in Cattaraugus County, commenced this CPLR article 78 proceeding to challenge, among other things, his transfer from Fishkill Correctional Facility in Dutchess County, asserting that the transfer was in retaliation for exercising his constitutional rights. Respondents moved pursuant to CPLR 3211 (a) to dismiss the petition on the ground that, among other things, petitioner failed to exhaust his administrative remedies. Supreme Court granted the motion and dismissed the petition and petitioner now appeals. Petitioner’s appeal must be dismissed as untimely. The statutory requirements setting forth the time in which to bring an appeal are jurisdictional in nature and must be strictly adhered to (see CPLR 5513 [a]; Matter of Hannig v McCoy, 4 AD3d 685, 686 [2004]; Matter of Gaines v Coughlin, 236 AD2d 648, 649 [1997]). Here, the judgment of Supreme Court, entered May 10, 2010, was served on petitioner via first class mail sent June 2, 2010. As a result, petitioner’s undated notice of appeal, filed August 5, 2010, was untimely and the appeal must be dismissed (see CPLR 2103 [b] [2]; Matter of Hannig v McCoy, 4 AD3d at 686). Mercure, J.E, Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, without costs.