Opinion
No. 503238.
May 22, 2008.
Appeal from a judgment of the Supreme Court (Egan, J.), entered August 23, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for failure to exhaust administrative remedies.
Courtney Kelly, Pine City, appellant pro se.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, JJ.
Petitioner, a prison inmate, was found guilty of assaulting another inmate, engaging in violent conduct and creating a disturbance. Petitioner thereafter administratively appealed the determination of guilt. While his administrative appeal was still pending, petitioner initiated this CPLR article 78 proceeding seeking judicial review of the disciplinary determination. Respondent moved to dismiss the petition, Supreme Court granted the motion and this appeal ensued.
We affirm. This proceeding was prematurely commenced inasmuch as it was filed before a final determination was issued in connection with petitioner's administrative appeal ( see Matter of Dagnone v Goord, 298 AD2d 789, 790). Accordingly, Supreme Court properly dismissed the petition based upon petitioner's failure to exhaust his administrative remedies ( see id.).
Ordered that the judgment is affirmed, without costs.