Muniz v. David

Mercure, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered June 8, 2004 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services transferring petitioner to another facility. According to petitioner, after he arrived at Great Meadow Correctional Facility in Washington County in November 2001, he was told that he would be eligible for an area of preference transfer if he remained at Great Meadow for 24 months without incurring a disciplinary infraction. Petitioner was subsequently transferred, involuntarily, to Gouverneur Correctional Facility in St. Lawrence County in January 2003, where he was told that he would not be eligible for an area of preference transfer until his April 2005 review. Thereafter, petitioner commenced this CPLR article 78 proceeding alleging that his transfer from Great Meadow to Gouverneur was arbitrary and capricious and an abuse of respondent’s discretion. Supreme Court dismissed the petition, prompting this appeal. We affirm. This proceeding was commenced in October 2003— nearly 10 months after respondent’s determination to transfer petitioner was made—and was untimely under the four-month statute of limitations applicable to proceedings commenced pursuant to CPLR article 78 (see CPLR 217 [1]; Matter of Blanche v Selsky, 13 AD3d 681, 682 [2004]). Moreover, although the record contains various letters that petitioner wrote complaining about his transfer, an affidavit from an Inmate Grievance Supervisor confirms that petitioner never filed a formal grievance. Thus, petitioner “failed to exhaust the administrative remedies through the available grievance procedures or establish any exceptions thereto” and dismissal of the petition was [940] also proper on that basis (Matter of Woodall v Goord, 6 AD3d 1000, 1001 [2004], appeal dismissed 3 NY3d 765 [2004]; see 7 NYCRR part 701). Accordingly, Supreme Court properly dismissed the petition. Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.