                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517058
________________________________

In the Matter of JAMES
   STEVENSON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     James Stevenson, Romulus, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Gilpatric,
J.), entered June 11, 2013 in Ulster County, which, in a
proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.

      Petitioner, a prison inmate, commenced this CPLR article 78
proceeding to challenge a prison disciplinary determination
rendered against him. While he was notified that the
determination had been affirmed upon administrative appeal on
October 18, 2012, he did not commence the present proceeding
until February 26, 2013. Supreme Court granted respondent's
motion to dismiss the petition as time-barred, and petitioner now
appeals.
                              -2-                  517058

      We affirm. The evidence in the record demonstrates that
the petition was filed after the expiration of the applicable
four-month statute of limitations (see CPLR 217 [1]; 304 [a]),
and the unsworn allegations by petitioner that he attempted to
file the petition earlier did not constitute "admissible
evidentiary proof of the date of filing" sufficient to defeat
respondent's motion to dismiss (Matter of Ali v Goord, 15 AD3d
699, 700 [2005]). Likewise, we are unable to consider the
additional evidence "attached to petitioner's reply brief on
appeal because such evidence is dehors the record" (id.).
Instead, because those submissions are "documents outside the
record," petitioner's remedy would be to submit them before
Supreme Court as part of a motion to renew (Gagen v Kipany
Prods., 289 AD2d 844, 845 [2001]; see CPLR 2221 [e]). Supreme
Court thus properly dismissed the petition as untimely based on
the papers that were before it and, as a result, the merits of
the underlying determination are not before us (see Matter of
Fayette v Fischer, 108 AD3d 961, 962 [2013], lv denied 22 NY3d
854 [2013]; Matter of Blanche v Selsky, 13 AD3d 681, 682 [2004],
appeal dismissed and lv denied 4 NY3d 844 [2005]).

      McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.,
concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
