Adjudged that the determination is confirmed, and the proceeding is dismissed on the merits, without costs or disbursements.
Following a Tier III disciplinary hearing, it was determined that the petitioner had engaged in sexual activity with a correction officer, in violation of prison rules. That determination was upheld on administrative appeal on March 26, 1987. Since the instant proceeding was instituted in October 1987, it is time barred by the applicable four-month period of limitations (CPLR 217). In any event, a review of the record, including the testimony of the correction officer who observed the incident, indicates that the determination is supported by substantial evidence (Matter of Burgos v Coughlin, 108 A.D.2d 194, 198-199).
We have reviewed the petitioner's remaining arguments and find them to be without merit (Matter of Dempsey v Scully, 104 A.D.2d 412). Mangano, J.P., Bracken, Kunzeman and Harwood, JJ., concur.