Opinion
May 21, 1976
Appeal from the Supreme Court, Cayuga County.
Present — Moule, J.P., Cardamone, Simons, Mahoney and Dillon, JJ.
Judgment unanimously reversed, without costs, and matter remitted to parole board for further proceedings in accordance with the following memorandum: Petitioner is presently imprisoned in Auburn Correctional Facility under a two and one-third to seven-year sentence. On February 11, 1975 he met with the parole board and was denied parole without any reason being assigned for the denial. He thereupon brought this habeas corpus proceeding on July 3, 1975 (the delay was occasioned at least in part by his transfer from Attica to Auburn). Special Term, holding that habeas corpus was inappropriate, considered petitioner's application as an article 78 proceeding (see CPLR 103, subd [c]) but held that the Statute of Limitations foreclosed relief (CPLR 217). It dismissed the petition. We have held that a prisoner is entitled to be informed of the reasons that his parole is denied (Matter of Festus v Regan, 50 A.D.2d 1084), that the right to such relief is retroactive (People ex rel. Ward v Smith, 52 A.D.2d 755), and that article 78 is the proper remedy when the board fails to comply with this requirement (People ex rel. Ward v Smith, supra; Matter of Speed v Regan, 50 A.D.2d 1100). Special Term correctly treated the application as an article 78 proceeding but was in error in holding that the proceeding was barred by the Statute of Limitations. Because the proceeding is in the nature of mandamus, to compel the performance of a duty enjoined by law, the statute does not run until after a demand is made and the board refuses to perform the duty, unless petitioner has been guilty of laches (see Matter of Pfingst v Levitt, 44 A.D.2d 157). The parole board is directed to notify petitioner of the reasons for denial of his parole.