Opinion
12-15-2016
In the Matter of Rudolph TURNER, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Rudolph Turner, Newburgh, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Rudolph Turner, Newburgh, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Before: LYNCH, J.P., DEVINE, CLARK, MULVEY and AARONS, JJ.
Appeal from a judgment of the Supreme Court (Fisher, J.), entered January 28, 2016 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondent's motion to dismiss the petition.
In March 2015, during a tier III prison disciplinary hearing, petitioner pleaded guilty to violating six prison disciplinary rules stemming from his misconduct while participating in a prison work release program. The Hearing Officer issued a guilty disposition and imposed a penalty of 240 days in the special housing unit with a commensurate loss of privileges and a loss of good time. Upon review, the facility superintendent reduced petitioner's time in the special housing unit to 104 days and his loss of privileges to 120 days. In September 2015, petitioner commenced this CPLR article 78 petition challenging the penalty as excessive. In his petition, petitioner alleged that he had filed an administrative appeal of the disciplinary determination on March 23, 2015 for which he had not yet received a final determination. Prior to answering, respondent moved to dismiss based upon, among other grounds, petitioner's failure to exhaust all of his administrative remedies, which motion petitioner opposed. Supreme Court granted the motion, finding that, by commencing the proceeding while the administrative appeal was pending, petitioner had failed to exhaust administrative remedies. Petitioner appeals.
While the petition states that the administrative appeal was filed on March 23, 2014, this was an error that was corrected in the proposed amended verified petition. Although Supreme Court ultimately denied petitioner's motion to amend the petition, it fully considered all of the allegations raised therein.
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We affirm. On a motion to dismiss, the facts as alleged by the petitioner are accepted as true (see Matter of Rodriguez v. Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185, 3 N.Y.S.3d 793 [2015], lv. denied 25 N.Y.3d 912, 2015 WL 3952245 [2015] ; Moulton v. State of New York, 114 A.D.3d 115, 119, 977 N.Y.S.2d 797 [2013] ). Here, by his own account, petitioner commenced this CPLR article 78 proceeding after the disciplinary determination was rendered, but before his pending administrative appeal had been resolved. Accordingly, petitioner failed to exhaust all of his available administrative remedies and this proceeding was, consequently, premature (see Matter of Schenectady Nursing & Rehabilitation Ctr., LLC v. Shah, 124 A.D.3d 1023, 1024, 2 N.Y.S.3d 249 [2015] ; Matter of Connerton v. Ryan, 86 A.D.3d 698, 699, 926 N.Y.S.2d 741 [2011] ). Petitioner contends that this proceeding was not premature because 7 NYCRR 254.8 contemplates that a final determination will be rendered "within 60 days of receipt of the [administrative] appeal." However, as we have previously recognized, "the 60–day time period is directory, rather than mandatory" (Matter of Howard v. Prack, 137 A.D.3d 1360, 1360, 26 N.Y.S.3d 640 [2016] ; accord Matter of Goberdhan v. Goord, 7 A.D.3d 897, 898, 776 N.Y.S.2d 648 [2004] ). Moreover, petitioner has not demonstrated any prejudice due to the delay (see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ). Thus, inasmuch as petitioner commenced this proceeding without first exhausting his administrative remedies, Supreme Court properly dismissed the petition (see Matter of Rodriguez v. Fischer, 80 A.D.3d 920, 921, 913 N.Y.S.2d 923 [2011] ; Matter of West v. McGinnis, 4 A.D.3d 654, 655, 771 N.Y.S.2d 745 [2004] ).
ORDERED that the judgment is affirmed, without costs.