Opinion
2012-05-24
In the Matter of John BROOKS, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
John Brooks, Albion, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondents.
John Brooks, Albion, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondents.
Before: ROSE, J.P., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.
Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered August 3, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying petitioner's grievance.
Petitioner, an inmate at Groveland Correctional Facility in Livingston County, filed a grievance in February 2011 to, among other things, challenge the rate of pay for his employment in the food service program. His grievance was ultimately denied by the Central Office Review Committee after which petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. Our review of the denial of an inmate grievance is limited to whether such determination was arbitrary and capricious or without a rational basis ( see Matter of Abreu v. Hogan, 91 A.D.3d 996, 935 N.Y.S.2d 912 [2012];Matter of Pride v. New York State Dept. of Correctional Servs., 91 A.D.3d 1003, 1004, 935 N.Y.S.2d 913 [2012] ). Initially, we reject petitioner's contention that a Supreme Court judgment issued in 2000 was controlling regarding his rate of pay. Department of Corrections and Community Supervision Directive No. 4310, which prescribes food service pay rates, was revised in 2001, and petitioner acknowledges that he left and returned to food service after the revision was enacted. Accordingly, we find the 2000 judgment inapplicable. To the extent that petitioner challenges the Central Office Review Committee's interpretation of the 2001 revisions to Directive No. 4310, his argument is unpreserved based upon his failure to raise it during the administrative proceedings or in his petition ( see Matter of Bunting v. Fischer, 84 A.D.3d 1631, 1632, 922 N.Y.S.2d 830 [2011],lv. denied17 N.Y.3d 709, 2011 WL 4089762 [2011];Matter of Binkley v. New York State Dept. of Correctional Servs., 64 A.D.3d 1063, 1064, 881 N.Y.S.2d 922 [2009],lv. denied13 N.Y.3d 886, 893 N.Y.S.2d 832, 921 N.E.2d 599 [2009] ).
Petitioner's remaining contentions have been examined and found to be without merit.
ORDERED that the judgment is affirmed, without costs.