Marcelin v. Coughlin

Appeal from a judgment of the Supreme Court (Cobb, J.), entered July 15, 1992 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition as time barred. We agree with Supreme Court that the petition should be dismissed. Petitioner seeks review of what he characterizes as retaliatory transfers within the prison system. The administrative review of the only transfers from which petitioner 715 demanded relief through the grievance process was final as of April 24, 1991. This is also the date that respondents’ refusal to grant petitioner a hearing upon his transfer from Ulster Correctional Facility in Ulster County became final. This proceeding was commenced in February 1992. Therefore, the four-month Statute of Limitations was clearly exceeded and the proceeding was untimely regardless of whether this proceeding is characterized as one for mandamus to review (see, Matter of Mellor v Shepard, 191 AD2d 235; Matter of Edelman v Axelrod, 111 AD2d 468) or mandamus to compel (see, Matter of Waterside Assocs. v New York State Dept. of Envtl. Conservation, 72 NY2d 1009). Mikoll, J. P., Yesawich Jr., Levine, Crew III and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.