Ordered that the judgments are affirmed, without costs or disbursements.
The determination dated March 18, 1988, was vacated based upon a procedural impropriety by the respondent Commissioner of the New York State Department of Correctional Services, who directed a new hearing pursuant to 7 NYCRR 254.8 (d). Accordingly, the determination under review did not constitute a final order, and is not reviewable. In any event, we note that the Commissioner's direction of a new hearing was within the proper exercise of his discretion.
After the new hearing, the petitioner was again found guilty of "fighting", which determination the Commissioner confirmed on July 6, 1988. Because the petitioner did not commence a proceeding pursuant to CPLR article 78 until on or about December 22, 1988, the Supreme Court properly dismissed it as time barred. Contrary to the petitioner's contentions, there is no basis to apply the tolling provision set forth in CPLR 205 (a). Lawrence, J.P., Kooper, Sullivan and Rosenblatt, JJ., concur.