Lashley v. Goord

293 A.D.2d 849, 739 N.Y.S.2d 856, 2002 N.Y. App. Div. LEXIS 3637

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 2002
• Status: Published

Opinion

Spain, J.

Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered January 29, 2001 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for failure to exhaust administrative remedies.

Petitioner initiated this CPLR article 78 proceeding challenging the denial of an inmate grievance wherein petitioner had alleged that he was transferred to Franklin Correctional Facility in Franklin County in retaliation for his filing of other grievances while he was incarcerated at Great Meadow Correctional Facility in Washington County. The Attorney General has advised this Court by letter that respondent seeks to withdraw his objection in point of law that petitioner failed to exhaust his administrative remedies. The Attorney General asks this Court to vacate Supreme Court’s judgment and remand the matter to that court for further proceedings. Upon our review of the record and the Attorney General’s request to withdraw respondent’s objection, we deem it appropriate to remit this matter to Supreme Court for a determination on the merits (see, Matter of Burr v Goord, 290 AD2d 611; Matter of Butler v Goord, 262 AD2d 694, 695).

Mercure, J.P., Crew III, Peters and Lahtinen, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.