| Matter of Moller v Dennison |
| 2008 NY Slip Op 00502 [47 AD3d 818] |
| January 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of James Moller, Appellant, v RobertDennison, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Richard Dearing and Justin R. Longof counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondentRobert Dennison, as Chairman of the New York State Division of Parole, dated July 19, 2006,which denied, without a hearing, the petitioner's application to lift a special condition of hispost-release supervision prohibiting him from associating in any way or communicating by anymeans with his wife without approval from the New York State Division of Parole or, in thealternative, for permission, pursuant to the special condition, to reside with his wife, the appeal isfrom an order and judgment (one paper) of the Supreme Court, Nassau County (Phelan, J.), datedDecember 19, 2006, which, upon granting that branch of the respondent's motion which was todismiss the petition as time-barred, dismissed the proceeding.
Ordered that the order and judgment is affirmed, with costs.
In July 2002 the petitioner was convicted, inter alia, of attempted assault in the first degree,assault in the second degree, and reckless endangerment in the first degree after shooting his wifewith a shotgun as she was backing the family car out of the driveway.
Pursuant to the terms of his January 2006 supervised release, the petitioner was prohibitedfrom associating in any way or communicating by any means with his wife without thepermission of the respondent Chairman of the New York State Division of Parole. In June 2006the [*2]petitioner applied to the respondent for permission toreside with his wife. The respondent summarily denied the application in July 2006, based on theexistence of a "policy strictly prohibit[ing] the approval of a proposed residence . . .with any victim of domestic violence perpetrated by the parolee, even if the victim claims thatthere has been reconciliation."
The petitioner thereafter commenced this CPLR article 78 proceeding by order to show causedated October 12, 2006. The respondent successfully moved to dismiss the petition astime-barred (see CPLR 217 [1]).
Contrary to the respondent's contention, the instant proceeding, which was commenced lessthan four months after the petitioner was formally denied permission to reside with his wife, isnot barred by the statute of limitations (see Matter of Chmielewsky v New York State Div. ofParole, 246 AD2d 778, 779 [1998]). Thus, the Supreme Court erred in granting therespondent's motion to dismiss on this ground.
In the interest of judicial economy (see Matter of Alamin v New York State Dept. ofCorrectional Servs., 253 AD2d 948 [1998]), we consider the merits of the petition and, basedon our review of the record, conclude that it should be denied (cf. United States vRodriguez, 178 Fed Appx 152, 157-158 [2006], cert denied — US — ,127 S Ct 1124 [2007]; People v Jungers, 127 Cal App 4th 698, 703-704, 25 Cal Rptr 3d873, 877-878 [2005]). Thus, the Supreme Court's dismissal of the proceeding is affirmed. Ritter,J.P., Florio, McCarthy and Dickerson, JJ., concur.