In the Matter of Jason Grant,
Daniel Senkowski, as Superintendent of Clinton Correctional Facility, et al.,
2001 NY Int. 8
Petitioner, while an inmate at the Coxsackie
Correctional Facility, brought this CPLR article 78 proceeding to
challenge a determination finding him guilty of violating a
prison disciplinary rule prohibiting the possession of a weapon.
The sole issue on appeal is whether petitioner timely complied
with CPLR 304 's commencement-by-filing requirements when he
delivered a proposed order to show cause, verified CPLR article
Petitioner, proceeding pro se, submitted his proposed order to show cause, petition and request for poor person relief to prison authorities on Wednesday, October 21, 1998, five days before the applicable Statute of Limitations period expired (see, CPLR 217 ). Because he requested that the papers be sent by certified mail, petitioner also submitted a form authorizing the Department of Correctional Services to deduct the required additional postage from his prisoner account. The prison business office processed that request and, on Monday, October 26, 1998, mailed petitioner's papers to Supreme Court, Albany County, where they were received in the court clerk's office on October 28, 1998, two days after the Statute of Limitations expired. A Supreme Court Justice signed the order to show cause on November 5. Thereafter, the signed order to show cause and verified petition were filed with the court clerk.
Respondents moved to dismiss the proceeding as time- barred. Supreme Court granted the motion and entered a judgment dismissing the proceeding. The Appellate Division unanimously affirmed. We granted leave to appeal and now affirm.
Under this State's commencement-by-filing system, an
article 78 proceeding is "commenced by filing a notice of
petition or order to show cause and a petition" (CPLR 304 ).
Claims asserted in such proceedings are deemed "interposed" for
Relying on the holding of the Supreme Court of the United States in Houston v Lack (487 US 266), petitioner urges us to adopt a pro se prisoner "mailbox rule," under which the term "filing" would be redefined to mean the delivery of a notice of petition or order to show cause by a pro se prisoner to prison authorities for forwarding to the appropriate court. Because he delivered his proposed order to show cause, verified petition and request for poor person relief to prison authorities before the Statute of Limitations expired, petitioner argues that his CPLR article 78 proceeding should be deemed timely commenced. We disagree.
In Houston, the Supreme Court held that a pro se
prisoner's notice of appeal was filed when delivered to prison
officials for transmittal to the court. That holding was based,
in part, upon the Court's interpretation of the term "filing" as
used in the Federal Rules of Appellate Procedure, which were
promulgated and adopted by the Supreme Court itself. The Supreme
Court's authority in interpreting its own rules exceeds our
After defining the term "filing" as the delivery of certain litigation papers to the clerk of the court or other person designated by the clerk, CPLR 304 specifies that, "[a]t the time of filing, the filed papers shall be date stamped by the clerk of the court who shall file them and maintain a record of the date of the filing and who shall return forthwith a date stamped copy, together with an index number, to the filing party." In addition, CPLR 306 -a(a) provides that an index number shall be assigned "[u]pon filing." This express statutory language -- which requires an immediate temporal link between (1) the litigant's physical act of filing, (2) the court's date stamping of filed papers and (3) the assignment of an index number -- evinces the Legislature's intent to treat litigation papers as "filed" within the meaning of CPLR 304 only upon the physical receipt of those papers by the court clerk or the clerk's designee.
Moreover, construing the term "filing" as requiring the
actual receipt of litigation papers which are date-stamped by the
We recognize the greater impediments pro se prisoners may face over most other litigants in filing their legal papers on time. But, absent any evidence that the Legislature intended to vary for their benefit the filing-by-receipt requirement established in CPLR 304 , we cannot depart from the statutorily mandated filing requirements by incorporating a pro se prisoner mailbox exception.
In one limited respect, however, the Legislature has
evidenced its intent to ease the burden of the unique impediments
involved in the commencement of proceedings by pro se inmates.
Generally, litigants are required to file a signed order to show
cause to commence a proceeding because "an unexecuted order to
show cause is of no legal effect" (Matter of Fry v Tarrytown,
CPLR 1101(f) , entitled "Fees for inmates," was enacted in 1999 to provide a means for an inmate to commence an "action or proceeding" by paying a reduced filing fee (see, L 1999, ch 412). The inmate requests such relief by filing a "form affidavit * * * along with the summons and complaint or summons with notice or third-party summons and complaint or petition or notice of petition or order to show cause" (CPLR 1101 [f][emphasis supplied]). At that point in time, even before the proposed order to show cause is signed by a judge, CPLR 1101(f) (1) directs that the case "be given an index number * * * and the application will be submitted to a judge of the court." We conclude that this statutory scheme evinces the Legislature's intent to treat an inmate's unsigned order to show cause as "filed" when the case is assigned an index number upon receipt of the papers by the clerk of the court (see, CPLR 306 - a[a] [index number shall be assigned "[u]pon filing"]; CPLR 304 [index number is assigned "[a]t the time of filing"]).
CPLR 1101(f) , however, is of no avail to petitioner.
Petitioner's proposed order to show cause, verified petition and
request for poor person relief were not received by the clerk of
the court until two days after the Statute of Limitations expired
and, thus, were not timely filed even under the procedure for
commencement of actions and proceedings by indigent prison
Accordingly, the order of the Appellate Division should be affirmed, without costs.