Opinion
2014-06-13
In the Matter of Eric W. WIEGAND, Petitioner, v. Honorable John H. CRANDALL, Respondent.
Todd D. Bennett, Herkimer, for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.
Todd D. Bennett, Herkimer, for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, and DeJOSEPH, JJ.
MEMORANDUM.
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his pistol permit. We conclude that the proceeding must be dismissed as time-barred. “A proceeding pursuant to CPLR article 78 ‘must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner’ ” (Matter of Silvestri v. Hubert, 106 A.D.3d 924, 924–925, 965 N.Y.S.2d 185, quoting CPLR 217[1] ). Here, respondent's determination became final and binding upon petitioner once he received notice of it ( see id. at 925, 965 N.Y.S.2d 185). The record establishes that petitioner had notice of the determination at least by May 10, 2013, the date on which he improperly filed a notice of appeal in an attempt to seek review of respondent's determination. This proceeding was not commenced until October 17, 2013, and thus the petition must be dismissed as time-barred ( see id.; Matter of Dalton v. Drago, 72 A.D.3d 1243, 1243, 897 N.Y.S.2d 661;Matter of Fowler v. Marks, 241 A.D.2d 928, 928, 661 N.Y.S.2d 363,lv. denied91 N.Y.2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533). The fact that petitioner filed an improper notice of appeal within the four-month statute of limitations does not alter our decision ( see generallyCPLR 201; McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714;Dalton, 72 A.D.3d at 1243, 897 N.Y.S.2d 661).
It is hereby ORDERED that said petition is unanimously dismissed without costs.