Opinion
January 28, 1980
Appeal from a judgment of the Supreme Court, Dutchess County, entered April 25, 1979, which (1) granted petitioner's application pursuant to CPLR article 78 to compel appellants to transfer petitioner from the Green Haven Correctional Facility to the Elderly and Handicapped Unit at the Fishkill Correctional Facility for confinement and (2) remanded him to the custody of the latter facility. Judgment reversed, on the law, without costs or disbursements, proceeding dismissed, and petitioner is remanded to the custody of the Superintendent of the Green Haven Correctional Facility. Absent a violation by appellants of a positive statutory requirement, or a denial of any constitutional rights (neither of which we find here), a refusal to transfer a prisoner to the Elderly and Handicapped Unit at Fishkill is not judicially reviewable (see Matter of Rosati v. Grenis, 50 A.D.2d 818). We have considered the merits, and were we not dismissing the proceeding as not judicially reviewable, we would dismiss it on the merits. Hopkins, J.P., Titone, Lazer and Gibbons, JJ., concur.