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La Bounty v. McSweeney

Appellate Division of the Supreme Court of New York, Third Department
Jun 22, 1995
216 A.D.2d 757 (N.Y. App. Div. 1995)

Opinion

June 22, 1995

Appeal from the Supreme Court, Albany County (Spain, J.).


Petitioner, an inmate in a State correctional facility, brought a CPLR article 78 proceeding challenging a determination of the Central Office Review Committee of the Department of Correctional Services finally rejecting petitioner's demand for overtime compensation for electrical work he claims to have performed. Supreme Court granted the petition and remitted the matter "for a rehearing at which the technical matters complained of by the petitioner may be remedied". Petitioner appealed Supreme Court's judgment and, during the pendency of the appeal, respondents made a de novo administrative review of the matter, following which it again denied petitioner's claim.

To the extent that petitioner challenges Supreme Court's refusal to grant him the complete relief he sought, i.e., a judicial determination that he is entitled to the disputed overtime compensation, Supreme Court's judgment should be affirmed. In our view, petitioner's CPLR article 78 proceeding was devoid of merit and, in fact, should have been summarily dismissed. Furthermore, to the extent that petitioner challenges respondents' determination following remittal, it is clear that such a challenge must be the subject of a new CPLR article 78 proceeding ( see, Matter of Sofair v. State Univ., 44 N.Y.2d 475, 479; Matter of Kalinsky v. State Univ., 188 A.D.2d 810, 811, lv denied 81 N.Y.2d 711).

Mikoll, J.P., Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.


Summaries of

La Bounty v. McSweeney

Appellate Division of the Supreme Court of New York, Third Department
Jun 22, 1995
216 A.D.2d 757 (N.Y. App. Div. 1995)
Case details for

La Bounty v. McSweeney

Case Details

Full title:In the Matter of MARK LA BOUNTY, Appellant, v. EDWARD J. McSWEENEY, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 22, 1995

Citations

216 A.D.2d 757 (N.Y. App. Div. 1995)
629 N.Y.S.2d 91

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