Berrian v. Carpenter

Appellate Division of the Supreme Court of New York

Berrian v. Carpenter

19 A.D.3d 769, 796 N.Y.S.2d 261, 2005 N.Y. App. Div. LEXIS 6190

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 2005

StatusPublished

Cited by2 cases

This text of 19 A.D.3d 769 (Berrian v. Carpenter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berrian v. Carpenter, 19 A.D.3d 769, 796 N.Y.S.2d 261, 2005 N.Y. App. Div. LEXIS 6190 (N.Y. Ct. App. 2005).

Pincite

Opinion

Appeal from a judgment of the Supreme Court (Berke, J.), entered May 4, 2004 in Washington County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

[770]*770Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of creating a disturbance, interfering with an employee, harassment and refusing a direct order. Respondent served an answer, raising as an objection in point of law that the petition failed to state a cause of action. Supreme Court dismissed the petition on that basis, resulting in this appeal.

Our review of the petition discloses that it contains only conclusory allegations that the hearing was unfair and that certain regulations, namely 7 NYCRR 250.1 and 250.2, were violated. Notably, petitioner has not alleged facts particularizing these claims nor does he allege that the findings of guilt were not supported by substantial evidence (see e.g. Matter of Spry v Delaware County, 253 AD2d 178, 181 [1999]). Accordingly, we agree with Supreme Court that the petition is facially deficient and should be dismissed (see CPLR 402, 3013; Matter of Johnson v Goord, 290 AD2d 844, 844-845 [2002]; Weimer v City of Johnstown, 249 AD2d 608, 610-611 [1998], lv denied 92 NY2d 806 [1998]; Matter of Malik v Berlinland, 158 AD2d 836 [1990], lv denied 76 NY2d 704 [1990]).

Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from a judgment of the Supreme Court (Berke, J.), entered May 4, 2004 in Washington County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

[770]*770Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of creating a disturbance, interfering with an employee, harassment and refusing a direct order. Respondent served an answer, raising as an objection in point of law that the petition failed to state a cause of action. Supreme Court dismissed the petition on that basis, resulting in this appeal.

Our review of the petition discloses that it contains only conclusory allegations that the hearing was unfair and that certain regulations, namely 7 NYCRR 250.1 and 250.2, were violated. Notably, petitioner has not alleged facts particularizing these claims nor does he allege that the findings of guilt were not supported by substantial evidence (see e.g. Matter of Spry v Delaware County, 253 AD2d 178, 181 [1999]). Accordingly, we agree with Supreme Court that the petition is facially deficient and should be dismissed (see CPLR 402, 3013; Matter of Johnson v Goord, 290 AD2d 844, 844-845 [2002]; Weimer v City of Johnstown, 249 AD2d 608, 610-611 [1998], lv denied 92 NY2d 806 [1998]; Matter of Malik v Berlinland, 158 AD2d 836 [1990], lv denied 76 NY2d 704 [1990]).

Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Cite This Page — Counsel Stack

Bluebook (online)

19 A.D.3d 769, 796 N.Y.S.2d 261, 2005 N.Y. App. Div. LEXIS 6190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berrian-v-carpenter-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack