Opinion
2015-08-6
In the Matter of Robert CUMBERLAND, Appellant, v. COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Robert Cumberland, Stormville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Robert Cumberland, Stormville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN JR., LYNCH and CLARK, JJ.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered January 23, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to install televisions and/or radio jacks at Greenhaven Correctional Facility.
Petitioner, an inmate at Greenhaven Correctional Facility, submitted a grievance requesting that televisions and/or radio jacks be installed in each cell. Following the Central Office Review Committee's denial of his grievance, petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to install such. In its answer, respondent alleged that petitioner failed to state a cause of action. Supreme Court agreed and, accordingly, dismissed the petition. This appeal ensued.
We affirm. In a CPLR article 78 proceeding in the nature of mandamus to compel, “ ‘the petitioner has an initial burden of presenting factual allegations of an evidentiary nature or other competent evidence tending to establish his or her entitlement to the requested relief’ ” (Matter of Henriquez v. New York State Dept. of Correctional Servs., 61 A.D.3d 1191, 1192, 876 N.Y.S.2d 774 [2009], quoting Matter of Rodriguez v. Goord, 260 A.D.2d 736, 736–737, 688 N.Y.S.2d 722 [1999], lv. denied93 N.Y.2d 818, 697 N.Y.S.2d 565, 719 N.E.2d 926 [1999] ). Here, the petition alleges that, upon information and belief, all other similar correctional facilities have televisions and radio jacks in each cell; thus, respondent is required to install similar equipment at Greenhaven. We agree with Supreme Court that these assertions are not factual allegations of an evidentiary nature that tend to establish that petitioner is entitled to the relief that he seeks and, therefore, the petition was properly dismissed ( see Matter of Pettus v. Department of Correctional Servs., 72 A.D.3d 1375, 1376, 898 N.Y.S.2d 536 [2010] ). Finally, to the extent that petitioner sought discovery, Supreme Court providently exercised its discretion in denying his request ( seeCPLR 408; Matter of Lally v. Johnson City Cent. Sch. Dist., 105 A.D.3d 1129, 1132, 962 N.Y.S.2d 508 [2013] ). Petitioner's remaining contentions have been examined and found to be without merit.
ORDERED that the judgment is affirmed, with costs.