           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

690
OP 13-01823
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF ERIC W. WIEGAND, PETITIONER,

                     V                            MEMORANDUM AND ORDER

HONORABLE JOHN H. CRANDALL, RESPONDENT.


TODD D. BENNETT, HERKIMER, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department pursuant to CPLR 506 [b] [1]) to annul a determination of
respondent. The determination revoked the pistol permit of
petitioner.

     It is hereby ORDERED that said petition is unanimously dismissed
without costs.

     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 AD3d
924, 924-925, quoting CPLR 217 [1]). Here, respondent’s determination
became final and binding upon petitioner once he received notice of it
(see id. at 925). 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 AD3d 1243, 1243; Matter
of Fowler v Marks, 241 AD2d 928, 928, lv denied 91 NY2d 801). The
fact that petitioner filed an improper notice of appeal within the
four-month statute of limitations does not alter our decision (see
generally CPLR 201; McCoy v Feinman, 99 NY2d 295, 301-302; Dalton, 72
AD3d at 1243).



Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
