Howard v. Travis

268 A.D.2d 832, 700 N.Y.S.2d 868, 2000 N.Y. App. Div. LEXIS 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2000
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Torraca, J.), entered May 11, 1999 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for failure to exhaust administrative remedies.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding in Supreme Court to challenge a determination of the Board of Parole which denied his application for parole release. Respondents thereafter moved to dismiss this proceeding based upon petitioner’s failure to exhaust his administrative remedies. Supreme Court granted respondents’ motion and this appeal by petitioner followed.

We affirm. At the commencement of this CPLR article 78 proceeding, petitioner had an administrative appeal pending seeking the very same relief he was requesting in this proceeding. Hence, petitioner is precluded from seeking review of the initial determination denying his application for parole release until his administrative remedies have been exhausted (see, Matter of Hough v New York State Bd. of Parole, 235 AD2d 862, lv dismissed 90 NY2d 884; Matter of La Bounty v Russi, 208 AD2d 1071,, appeal dismissed and lv denied 85 NY2d 889).

Mercure, J. P., Crew III, Peters, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.