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

JEFFREY ROLFE, #94-B-0529,

Petitioner

O R D E R

v.

Index No. 19,029

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 Ann C. Williams

Assistant Attorney General

By petition pursuant to Article 78 of the CPLR dated November 5, 1999, Jeffrey&nbspA. Rolfe seeks review of decisions which denied relief on four of his grievance complaints. Petitioner appeared in support of the petition with counsel assigned by an order to show cause dated May 10, 2000. He has submitted six additional exhibits in support of his petition pursuant to the August 1, 2000 letter from his attorney. Respondent has moved to dismiss the petition, upon the grounds that the petitioner failed to exhaust his administrative remedies in regard to one of the grievances and otherwise failed to commence this action within the time requirements of CPLR 217, by notice of motion, dated July&nbsp19, 2000, supported by the affirmation of Ann C. Williams, Assistant Attorney General, dated July 19, 2000.

The respondent has submitted a letter from the Assistant Attorney General, dated August 10, 2000, objecting to the petitioner's submission of certain exhibits not relevant to the petition. Upon review of these exhibits, the Court finds that only documents filed under the four grievance complaints specified in the petition shall be considered in deciding the instant motion.

The record shows that the petitioner never appealed the September 27, 1999

decision which denied the grievance filed on August 26, 1999 under number A-39427-99. Thus, the petitioner's claim on this grievance must be dismissed, without prejudice, because the petitioner failed to exhaust his administrative remedy (see Matter of Patterson v. Smith, 53 N.Y.2d 98 [1981]; Matter of Harrison v. Leonardo, 183 A.D.2d 983 [1992]; Matter of Hall v. Woodburne Correctional Facility Medical Department, 186 A.D.2d 965 [1992], motion for leave to appeal denied 81 N.Y.2d 703).

The record shows that the grievance filed on June 16, 1998 under number A-37154-98 was denied by a decision dated August 12, 1998. The petition shows that the petitioner was notified of the final August 12, 1998 decision denying this grievance (see page 13 of November&nbsp5, 1999 petition). Thus, it appears that his claims under this grievance must be dismissed under the four month statute of limitations because the petitioner made no effort to initiate the instant action until November, 1999.

The two other grievances, filed under numbers A-38841-99 and A-38687-99, were denied by decisions dated July&nbsp14, 1999. Petitioner claims that he mailed his November&nbsp5, 1999 petition to the Clerk of the Court within four months of that date. The original petition is annexed to the petitioner's proposed order to show cause which was filed in the office of the Wyoming County Clerk on November 10,1999. Thus, it appears that the petitioner attempted to commence this action in a timely manner by mailing his papers to the Court while he was incarcerated and unrepresented by counsel. Under these circumstances, the Court finds that the petition against these two grievances should be treated as timely commenced and that the respondent has failed to establish the statute of limitations defense on these two claims (see Matter of Mandala v. Jablonsky, 242 A.D.2d 271 [1997]; Matter of Edwards v. Coughlin, 191 A.D.2d 1044 [1993]).

NOW, THEREFORE, it is hereby

ORDERED that the petition is dismissed, without prejudice, in so far as it seeks review of the grievance filed under number A-39427-99; and it is further

ORDERED that the claim for review of the grievance filed under A-37154-98 is dismissed under CPLR 217; and it is further

ORDERED that the motion to dismiss the petition for review of the grievances filed under numbers A-38841-99 and A-38687-99 is denied and the respondent is directed to serve an answer to the petition on these claims.

DATED: September 19, 2000

Warsaw, New York



Acting Supreme Court Justice


Order

Index No. 19,029