Mejia v. Scully

— In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent dated December 21, 1988, confirming a Tier III disciplinary determination by a Hearing Officer at Green Haven Correctional Facility finding that the petitioner used a controlled substance, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Benson, J.), dated July 10, 1989, which dismissed the proceeding as time barred. 661 Ordered that the judgment is affirmed, without costs or disbursements. The petitioner concedes that this proceeding was brought more than four months after the disciplinary determination sought to be reviewed became final (see, CPLR 217). He nonetheless urges that this proceeding is timely under CPLR 205 (a) because he commenced it within six months of the dismissal of a prior proceeding for review of the same determination. However, that prior proceeding was dismissed on jurisdictional grounds (see, e.g., Matter of Kelly v Scully, 152 AD2d 698; Matter of Dello v Selsky, 135 AD2d 994). Since no proceeding was timely commenced within the meaning of CPLR 205 (a), the Supreme Court properly dismissed the instant proceeding as time-barred (see, Markoff v South Nassau Community Hosp., 61 NY2d 283; Matter of RECYCLE v Lacatena, 163 AD2d 693). Bracken, J. P., Harwood, Balletta and Eiber, JJ., concur.