Harvey v. Bradt

We affirm. The proceeding was not commenced within four months of the date that petitioner received notice of the final and binding prison disciplinary determination (see CPLR 217 [1]; Matter of Spencer v New York State Dept. of Correctional Servs., 78 AD3d 1342 , 1343 [2010]; Matter of Cunningham v Fischer, 57 AD3d 1142 [2008]). The last day of the four-month period, August 9, 2009, fell on a Sunday giving petitioner until the following day to commence a timely proceeding (see General Construction Law § 25-a [1]; Matter of Taylor v Dufrain, 278 AD2d 681 , 682 [2000]). Since he did not, however, commence the proceeding until the day after that, the proceeding was untimely and Supreme Court properly dismissed the petition on that basis. Accordingly, we need not address the merits of petitioner’s claims.

Mercure, A.PJ., Lahtinen, Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.