Kelly v. Selsky

51 A.D.3d 1298, 856 N.Y.S.2d 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2008
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Egan, J.), entered August 23, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for failure to exhaust administrative remedies.

Petitioner, a prison inmate, was found guilty of assaulting another inmate, engaging in violent conduct and creating a disturbance. Petitioner thereafter administratively appealed the determination of guilt. While his administrative appeal was still pending, petitioner initiated this CPLR article 78 proceeding seeking judicial review of the disciplinary determination. Respondent moved to dismiss the petition, Supreme Court granted the motion and this appeal ensued.

We affirm. This proceeding was prematurely commenced inasmuch as it was filed before a final determination was issued in connection with petitioner’s administrative appeal (see Matter of Dagnone v Goord, 298 AD2d 789, 790 [2002]). Accordingly, Supreme Court properly dismissed the petition based upon petitioner’s failure to exhaust his administrative remedies (see id.).

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