Gilbert v. Coombe

Casey, J. Appeal from a judgment of the Supreme Court (Kane, J.), entered July 15, 1996 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition due to, inter alia, petitioner’s lack of standing. Petitioner, an inmate at Great Meadow Correctional Facility in Washington County, filed a grievance challenging respondent’s policy of housing two inmates in a cell formerly designed for one inmate. The grievance was based on petitioner’s fear for his health and safety because the so-called double-celling increased the risk of infection of tuberculosis and other airborne diseases. It is petitioner’s wish that the policy be suspended until adequate safety screening methods and proper ventilation are installed. Petitioner appealed the denial of his grievance administratively and brought a CPLR article 78 proceeding for the same relief as requested in his grievance. Supreme Court granted respondent’s motion to dismiss the petition on the grounds that petitioner lacked standing and the matter was not ripe for review. We agree. Petitioner is not, and has not been, subjected to doublecelling, nor has he shown that he has been exposed to or has contracted tuberculosis or any other airborne disease as a result of his housing arrangements. Furthermore, petitioner has not shown that airborne diseases in his cell block have actually increased due to double-celling. As petitioner has failed to demonstrate that double-celling has caused or will in fact cause him actual injury, he has no standing to bring this proceeding (see, Matter of Gilkes v New York State Div. of Parole, 192 AD2d 1041, 1042, lv denied 82 NY2d 654). Petitioner also lacks standing because the harm he claims is no different than that suffered by the general prison population (see, Matter of Meditrust Fin. Servs. Corp. v New York Crime Victims Bd., 226 AD2d 881, 882). We finally agree that the matter is not ripe for judicial review (see, Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 519-521, cert denied 479 US 985). Accordingly, the judgment appealed from should be affirmed. White, J. P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.