In the Matter of Jose Ortiz, Respondent, v. Charles J. Scully, as Superintendent of Green Haven Correctional Facility, et al., Appellants

In the Matter of Jose Ortiz, Respondent, v Charles J. Scully, as Superintendent of Green Haven Correctional Facility, et al., Appellants. [610 NYS2d 799] [MAJORITY] —In a proceeding pursuant to CPLR article 78 to review a determination of the appellant Charles J. Scully, as Superintendent of the Green Haven Correctional Facility, dated September 5, 1991, which found the petitioner guilty of violations of certain disciplinary rules, the appeal is from a judgment of the Supreme Court, Dutchess County (Bernhard, J.), dated March 25, 1992, which denied the appellants’ motion to dismiss the proceeding as time-barred, and annulled the determination. Ordered that the judgment is reversed, on the law, without costs or disbursements, the motion is granted, the petition is denied, and the proceeding is dismissed. The filing of the order to show cause with the clerk of the Supreme Court on January 2, 1992, did not commence the instant proceeding (see, CPLR former 304). The proceeding was commenced by service of the order to show cause and petition upon the appellant in February 1992, more than four months after the determination under review, and is, therefore, time-barred. Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.