Lombard v. Breslin

28 A.D.3d 665, 813 N.Y.S.2d 233

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 2006
• Status: Published

Opinion

In a proceeding pursuant to CFLR article 78 to review a determination of the Superintendent of the Arthur Kill Correctional Facility dated May 4, 2004, which denied the petitioner’s request for an eye examination at the New York Eye and Ear Infirmary, the appeal is from an order and judgment (one paper) of the Supreme Court, Richmond County (Giacobbe, J.), dated March 30, 2005, which granted the petition and denied the motion of the Superintendent of the Arthur Kill Correctional Facility to dismiss the petition.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the determination is confirmed, the motion is granted, the petition is denied, and the proceeding is dismissed on the merits.

The petitioner commenced this proceeding to compel the appellant to transport him for an eye examination at the New York Eye and Ear Infirmary. The appellant moved to dismiss the proceeding, inter alia, on the ground that the requested relief was not medically indicated. The Supreme Court granted the petition and denied the motion. We reverse.

The record indicates that the relief requested in the petition was not medically indicated. Accordingly, the appellant’s determination was not unreasonable or without, a basis in law (see Matter of Ehlinger v DeBuono, 249 AD2d 303 [1998]). Moreover, the petitioner failed to demonstrate that the appellant acted in a manner demonstrating a deliberate indifference to the petitioner’s serious medical needs (see Matter of Kelley v Coughlin, 221 AD2d 532 [1995]; Matter of De Flumer v Dalsheim, 122 AD2d 872 [1986]).

Accordingly, the proceeding should have been dismissed. Prudenti, P.J., Florio, Goldstein and Lunn, JJ., concur.