Opinion
2011-10-4
In the Matter of Bradford APPLEGATE, petitioner/plaintiff,v.Phillip D. HEATH, etc., respondent/defendant.
Bradford Applegate, Elmira, N.Y., petitioner/plaintiff pro se.Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Patrick J. Walsh of counsel), for respondent/defendant.
Hybrid proceeding pursuant to CPLR article 78 to review (1) a determination of the respondent/defendant, Phillip D. Heath, Superintendent of Sing Sing Correctional Facility, dated October 26, 2009, which confirmed a determination of a hearing officer, dated October 12, 2009, made after a Tier II disciplinary hearing, that the petitioner/plaintiff was guilty of violating prison disciplinary rules, and imposed a penalty, and (2) a determination of the New York State Department of Correctional Services Inmate Grievance Program Central Office Review Committee, dated February 10, 2010, which confirmed a determination of the Superintendent of the New York State Department of Correctional Services Inmate Grievance Program, dated November 9, 2009, denying, in part, the petitioner/plaintiff's grievance, and action for a judgment declaring that Directive 4421 (7 NYCRR 721.2[b][1] ) is unconstitutional, which was transferred to this Court by order of the Supreme Court, Westchester County (Zambelli, J.), dated September 21, 2010.
ORDERED that the determinations dated October 26, 2009, and February 10,
2010, are confirmed, the petition is denied, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the cause of action for a judgment declaring that Directive 4421 (7 NYCRR 721.2[b][1] ) is unconstitutional, and the entry of an appropriate judgment thereafter, inter alia, dismissing the proceeding.
Contrary to the contention of the petitioner/plaintiff (hereinafter the petitioner), there was substantial evidence supporting the hearing officer's determination that he was guilty of violating prison disciplinary rules ( see Matter of Benson v. Brown, 84 A.D.3d 794, 922 N.Y.S.2d 786; Matter of Watson v. Fischer, 82 A.D.3d 780, 917 N.Y.S.2d 903; Matter of Mabry v. Maddox, 57 A.D.3d 1000, 869 N.Y.S.2d 789). We find no basis to disturb the credibility determinations made by the hearing officer ( see Matter of Benson v. Brown, 84 A.D.3d 794, 922 N.Y.S.2d 786; Matter of Reyes v. Leclaire, 49 A.D.3d 884, 853 N.Y.S.2d 899).
Additionally, the partial denial of the petitioner's inmate grievance, asserting, inter alia, that his legal mail was improperly treated as general correspondence, was not arbitrary and capricious ( see generally Matter of Davis v. Fischer, 76 A.D.3d 1152, 907 N.Y.S.2d 718; Matter of Keesh v. Smith, 59 A.D.3d 798, 872 N.Y.S.2d 743). The petitioner failed to demonstrate that the mailing bore the identity and official business return address of his attorney ( see 7 NYCRR 721.2[b][1] ).
Since the petition/complaint also requested a declaratory judgment, relief for which a transfer to this Court is not authorized pursuant to CPLR 7804(g) ( see Matter of Coleman v. Town of Eastchester, 70 A.D.3d 940, 941, 895 N.Y.S.2d 478; Matter of Huntington Hills Assoc., LLC v. Town of Huntington, 49 A.D.3d 647, 648, 852 N.Y.S.2d 786; Matter of Herman v. Incorporated Vil. of Tivoli, 45 A.D.3d 767, 769, 846 N.Y.S.2d 316), the matter must be remitted to the Supreme Court, Westchester County, for further proceedings on the cause of action seeking such relief, and the entry of an appropriate judgment thereafter, inter alia, dismissing the proceeding.
SKELOS, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.