Opinion
2011-11-17
In the Matter of Johnathan JOHNSON, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Johnathan Johnson, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Johnathan Johnson, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, LAHTINEN, STEIN and GARRY, JJ.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered December 28, 2010 in Albany County, which, among other things, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review two determinations of the Central Office Review Committee denying petitioner's grievances.
Petitioner, a prison inmate, filed two grievances alleging that he was being served incorrect portions of food and that some of the food was stale. After petitioner's grievances were denied at the facility level, those denials were upheld by the Central Office Review Committee. Petitioner then commenced this CPLR article 78 proceeding to challenge those determinations. Thereafter, petitioner moved in Supreme Court to amend the proceeding to add an action for damages pursuant to 42 USC § 1983. The court denied the motion and dismissed the petition. Petitioner now appeals.
We affirm. Initially, we note that petitioner has abandoned his challenge to the Central Office Review Committee's denial of his grievances inasmuch as his brief is bereft of any argument regarding the rationality of those determinations ( see Matter of Quinones v. Fischer, 82 A.D.3d 1445, 1446 n., 918 N.Y.S.2d 749 [2011]; Matter of Raqiyb v. Fischer, 82 A.D.3d 1432, 1433 n., 919 N.Y.S.2d 543 [2011] ).
Turning to petitioner's challenge to Supreme Court's denial of his motion, leave to amend should be granted where the proponent has made an evidentiary showing sufficient to support the proposed claim and no prejudice would accrue ( see Nelson v. State of New York, 67 A.D.3d 1142, 1143, 892 N.Y.S.2d 201 [2009]; D'Orazio v. Mainetti, 39 A.D.3d 981, 982, 833 N.Y.S.2d 727 [2007] ). Whether to permit such amendment is a decision within the discretion of the trial court, and the decision will not be set aside absent an abuse of that discretion ( see Len v. State of New York, 74 A.D.3d 1597, 1601, 906 N.Y.S.2d 622 [2010], lv. dismissed and denied 15 N.Y.3d 912, 913 N.Y.S.2d 125, 939 N.E.2d 142 [2010]; Nelson v. State of New York, 67 A.D.3d at 1143, 892 N.Y.S.2d 201). Here, petitioner's proposed amendment is premised upon his allegation that he is not being given an adequate amount of nutritious food, the same complaint that was the gravamen of his first grievance. Inasmuch as Supreme Court affirmed the denial of that grievance on the merits and petitioner has failed to challenge such affirmance, we discern no abuse of that court's discretion in denying petitioner's motion ( see Len v. State of New York, 74 A.D.3d at 1601, 906 N.Y.S.2d 622).
ORDERED that the judgment is affirmed, without costs.