Matter of Ramos v New York City Dept. of Correction
2006 NY Slip Op 04359 [30 AD3d 1136]
Decided on June 6, 2006
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 6, 2006
Tom, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ.
8683 Index 403818/05

[*1]In re Johnny Ramos, etc., Petitioner,

v

New York City Department of Correction, Respondent.





Laura R. Johnson, The Legal Aid Society, New York (Steven B.
Wasserman of counsel), for petitioner.
Michael A. Cardozo, Corporation Counsel, New York (Julian L.
Kalkstein of counsel), for respondent.


In this proceeding challenging respondent's determination, dated May 13, 2005, after a hearing, which found petitioner to have tested positive for illegal substances while in confinement, and sentenced him to 30 days' punitive segregation and loss of 30 days' "good time" credit (transferred to this Court pursuant to CPLR 7804[g] by order of the Supreme Court, New York County [Rolando T. Acosta, J.], entered on or about December 1, 2005), the application unanimously denied and the cross motion to dismiss granted, without costs.

Petitioner failed to exhaust his administrative remedies. He asserts he filed an administrative appeal from the disciplinary determination, but it was not decided. Even if the administrative determination had been ripe for challenge, an article 78 proceeding must be commenced within four months after the determination becomes final and binding (CPLR 217[1]; Matter of Yarbough v Franco, 95 NY2d 342 [2000]). This petition was brought more than six months after petitioner became aggrieved, and was thus untimely.

Were we to consider the merits, we would confirm on the ground that the determination, based on testing after 30 days' confinement under the new drug protocol, was supported by substantial evidence (Matter of Myers v Goord, 274 AD2d 801 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2006

CLERK