PRESENT: HONORABLE MARK H. DADD

Acting Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT : COUNTY OF WYOMING

________________________________________

In the Matter of the Application of

MICHAEL BROOKS, #98-A-6381,

Petitioner

O R D E R

v.

Index No. 19,017

GLENN S. GOORD, Commissioner,

Department of Correctional Services, Respondent

FOR RELIEF PURSUANT TO ARTICLE 78 CPLR

________________________________________

For the Petitioner

WYOMING COUNTY-ATTICA LEGAL

AID BUREAU, INC.

Norman P. Effman, Director

For the Respondents

ELIOT SPITZER, Attorney General

by William D. Lonergan

Assistant Attorney General

By petition pursuant to Article 78 of the CPLR dated December&nbsp9, 1999, Michael Brooks seeks review of a superintendent's hearing completed on June&nbsp10, 1999. Petitioner appeared by counsel assigned by an order to show cause dated April 25, 2000 and contended that the hearing should be annulled. Respondent has moved to dismiss the petition, upon the grounds that this action was not commenced within the time requirements of CPLR 217, by notice of motion dated June 16, 2000. The motion is supported by the affirmation of William D. Lonergan, Assistant Attorney General, dated June&nbsp16, 2000, the affidavits of Donald Selsky, sworn to on June 19, 2000, Penny Sheffield, sworn to on June&nbsp14, 2000,Lynn Herman, sworn to on June 14, 2000, and the August&nbsp21, 2000 letter of Kim S. Murphy, Assistant Attorney General. Petitioner has submitted the affidavit of Susan&nbspK. Jones, sworn to on August&nbsp15, 2000, in opposition to the motion.

The record includes a copy of the legal mail logbook which shows that the petitioner received a notice on August&nbsp18, 1999 advising him that his appeal from the superintendent's hearing had been denied. Petitioner contends that he attempted to initiate this proceeding in a timely manner by mailing his papers to the Court on December&nbsp13, 1999.

The December 9, 1999 petition includes an unsworn "affidavit of service" indicating that the petitioner mailed his petition to the Court on December 13, 1999. A financial affidavit requesting permission to proceed as a poor person was sworn to before a notary public on December 22, 1999 and is now annexed to the papers. December 22, 1999 would have been past Monday, December 20, 1999, the last day allowed for initiating this action under the four month statute of limitations (see General Construction Law §25-a).

None of the papers annexed to the petition bear a stamp documenting the date they were actually received by the Clerk of the Court. A letter issued by the Court on March 28, 2000 indicates that the petitioner's request for permission to proceed as a poor person was received by the clerk on March 20, 2000. However, this letter is the form routinely generated when an inmate has complied with the reduced filing fee required by CPLR 1101(f). This new requirement of a minimum filing fee of $15.00 became effective for proceedings filed on December 9, 1999. The processing of papers received after that date was delayed for several months while a procedure was adopted to enable the Court to verify an inmate's account balance with the Department of Correctional Services. The Court is aware that papers received from inmates during this period may not have been promptly stamped while held for processing. Thus, it is possible, that he mailed his original papers on December 13, 1999 and that they were held pending implementation of the new procedure required by CPLR 1101(f) until his account was verified and he was able to comply with the new procedure in March, 2000. It is also possible that the December&nbsp22, 1999 affidavit was received after the petition was filed and merely annexed to the original documents while the petitioner was attempting to comply with the new procedure for obtaining permission to proceed as a poor person.

The Court finds that the ambiguities in the record should be construed in petitioner's favor because he attempted to initiate this action in a timely manner by mailing his papers to the Clerk of the Court while he was incarcerated and without counsel (see Matter of Mandala v. Jablonsky, 242 A.D.2d 271 [1997]). Thus, the respondent has failed to support its defense under the statute of limitations (see Matter of Edwards v. Coughlin, 191 A.D.2d 1044 [1993]) .

NOW, THEREFORE, it is hereby

ORDERED that the motion is denied and the respondent is directed to serve an answer to the petition.

DATED: September 19, 2000

Warsaw, New York



Acting Supreme Court Justice


Order

Index No. 19,017