La Bounty v. McSweeney

Mercure, J. Appeal from a judgment of the Supreme Court (Spain, J.), entered September 8, 1994 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted the petition and remitted the matter for a new hearing. 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 NY2d [758] 475, 479; Matter of Kolinsky v State Univ., 188 AD2d 810, 811, lv denied 81 NY2d 711). Mikoll, J. P., Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.