Adorno v. Jones

113 A.D.2d 973, 493 N.Y.S.2d 644, 1985 N.Y. App. Div. LEXIS 52595

Opinion

Mahoney, P. J. Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Washington County) to review a determination of respondent which declined to rule on a grievance filed by petitioner.

Petitioner, an inmate at Great Meadow Correctional Facility, was found guilty after a Superintendent’s proceeding of violating a disciplinary rule. Petitioner sought to challenge this determination by filing a grievance with the appropriate prison officials. The grievance was returned on the ground that the matter was not a proper subject for the grievance procedure. Petitioner commenced this CPLR article 78 proceeding challenging such determination. The proceeding has been transferred to this court for disposition.

It is clear from a reading of Directive No. 4040, which describes the grievance procedure, that it is inapplicable to matters which already have a written appeal mechanism. Disciplinary proceedings have a clearly described appeal mechanism (7 NYCRR 254.8). Petitioner was informed of this remedy both orally and in writing. Indeed, in his grievance complaint, petitioner indicated that he had appealed but had not yet received a response. Since the matter was not subject to the grievance procedure, petitioner’s complaint was properly returned.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Main, Levine and Harvey, JJ., concur.