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Gaines v. Coughlin

236 A.D.2d 648 Court N.Y. App. Div. Decision date 1997-02-06 English

Delivered by Mercure, J.

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p. 648
In the Matter of Gerald Gaines, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Depart
p. 649
ment of Correctional Services, et al., Respondents.
[654 NYS2d 42]

Appeal from a judgment of the Supreme Court (Ellison, J.), entered June 29, 1995 in Chemung County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner’s appeal must be dismissed as untimely. On July 20, 1995, petitioner was served with a copy of Supreme Court’s judgment and written notice of its entry. Because service was effected by mail, petitioner had 35 days to file his notice of appeal (CPLR 5513 [a]; 2103 [b] [2]; [c]). On or about August 10, 1995, petitioner submitted an application to this Court seeking poor person status. In the application, he acknowledged having been served with the judgment. As of November 29, 1995, however, no notice of appeal had been filed. The only notice of appeal before this Court was not filed until January 22, 1996. The statutory requirements setting forth the time within which to bring an appeal are jurisdictional in nature and must be strictly adhered to (see, Suarez v State of New York, 193 AD2d 1037 ).

Mikoll, J. P., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the appeal is dismissed, without costs.

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