
    In the Matter of David Burr, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    [777 NYS2d 920]
   Appeal from a judgment of the Supreme Court (O’Brien, III, J.), entered October 28, 2003 in Chemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as untimely.

Petitioner, an inmate, commenced this CPLR article 78 proceeding challenging an October 22, 2002 determination affirming his placement in administrative segregation. Respondents served an answer to the petition raising as an objection in point of law that the proceeding was not timely commenced within the four-month statute of limitations set forth in CPLR 217. Supreme Court dismissed the petition on this basis, resulting in this appeal.

Respondents have indicated that because the record is unclear as to whether the proceeding is untimely, an observation with which we agree, they are waiving the statute of limitations defense and wish to proceed on the merits (see e.g. Matter of Hughes v Coughlin, 205 AD2d 857 [1994]). In view of this, the judgment must be reversed and the matter remitted to Supreme Court to address the remaining claims raised in the petition or, if appropriate, to transfer the proceeding to this Court.

Cardona, P.J., Mercure, Crew III, Spain and Carpinello, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.  