Opinion
525402
04-26-2018
In the Matter of Wayne P. VANCE, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Wayne P. Vance, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Wayne P. Vance, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating various prison disciplinary rules. Respondent submitted an answer with an objection asserting that petitioner had not administratively appealed the determination and, therefore, had failed to exhaust his administrative remedies. Respondent supported the objection with an affidavit from the assistant director of special housing and inmate disciplinary programs, in which he stated that he had reviewed the records and that petitioner had not submitted an administrative appeal regarding the determination at issue. Inasmuch as there is no record that petitioner filed an administrative appeal, his challenge to the determination in the context of this CPLR article 78 proceeding is precluded by his failure to exhaust his administrative remedies (see Matter ofIfill v. Fischer, 79 A.D.3d 1322, 1322, 913 N.Y.S.2d 789 [2010] ; Matter ofHendricks v. Franklin Correctional Facility, 249 A.D.2d 856, 856, 672 N.Y.S.2d 824 [1998] ).
Because the answer raised an objection that could have terminated the proceeding, Supreme Court should have ruled on that issue prior to transferring this proceeding to this Court (see CPLR 7804 [g] ). Nevertheless, we shall decide the issue in the interest of judicial economy.
ADJUDGED that the petition is dismissed, without costs.
McCarthy, J.P., Egan Jr., Lynch, Aarons and Pritzker, JJ., concur.