Davidson v. Scully

Appellate Division of the Supreme Court of New York

Davidson v. Scully

110 A.D.2d 836, 488 N.Y.S.2d 243, 1985 N.Y. App. Div. LEXIS 48737

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

DecidedApril 22, 1985

StatusPublished

Cited by1 cases

This text of 110 A.D.2d 836 (Davidson v. Scully) 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

Davidson v. Scully, 110 A.D.2d 836, 488 N.Y.S.2d 243, 1985 N.Y. App. Div. LEXIS 48737 (N.Y. Ct. App. 1985).

Pincite

Opinion

Petitioner brought this proceeding complaining that the practice at Green Haven Correctional Facility of requiring inmates to “operate and close their [own] cell doors” was dangerous and that he was threatened with punishment if he refused to comply with this practice. On appeal, he argues that Special Term incorrectly dismissed the proceeding without considering the merits. We cannot agree.

Prior to instituting this proceeding, petitioner did not present his complaint to the grievance resolution committee at the correctional facility, which was specifically established to resolve such grievances pursuant to Correction Law § 139 (1). Thus, he failed to exhaust his administrative remedies before seeking judicial review. It is well settled that where an inmate bringing an article 78 proceeding has failed to pursue an administrative remedy available to him through the grievance procedure, the proceeding should be dismissed without prejudice to further proceedings under the grievance procedure (see, Matter of Patterson v Smith, 53 NY2d 98). Accordingly, dismissal was proper. Lazer, J. P., O’Connor, Weinstein and Brown, JJ., concur.

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Petitioner brought this proceeding complaining that the practice at Green Haven Correctional Facility of requiring inmates to “operate and close their [own] cell doors” was dangerous and that he was threatened with punishment if he refused to comply with this practice. On appeal, he argues that Special Term incorrectly dismissed the proceeding without considering the merits. We cannot agree.

Prior to instituting this proceeding, petitioner did not present his complaint to the grievance resolution committee at the correctional facility, which was specifically established to resolve such grievances pursuant to Correction Law § 139 (1). Thus, he failed to exhaust his administrative remedies before seeking judicial review. It is well settled that where an inmate bringing an article 78 proceeding has failed to pursue an administrative remedy available to him through the grievance procedure, the proceeding should be dismissed without prejudice to further proceedings under the grievance procedure (see, Matter of Patterson v Smith, 53 NY2d 98). Accordingly, dismissal was proper. Lazer, J. P., O’Connor, Weinstein and Brown, JJ., concur.

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Bluebook (online)

110 A.D.2d 836, 488 N.Y.S.2d 243, 1985 N.Y. App. Div. LEXIS 48737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-scully-nyappdiv-1985.

Opinion

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