Malik v. Officer Berlinland

158 A.D.2d 836, 551 N.Y.S.2d 421, 1990 N.Y. App. Div. LEXIS 1798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1990
• Status: Published

Opinion

Mercure, J.

Petitioner, an inmate in the special housing unit (hereinafter SHU) at Sullivan Correctional Facility in Sullivan County, commenced this proceeding alleging that the food served to him in SHU was being contaminated by the styrofoam "median” that it was served in, thereby causing him numerous bodily pains and anxieties. Respondents annexed to their answer the affidavit of Wayne Wilhelm, Deputy Superintendent for security at the facility, who averred that "[a]ll inmates [in SHU] get identical food” and that "[petitioner’s] food is not contaminated”. Supreme Court dismissed the petition. This appeal ensued.

There should be an affirmance. Petitioner has not supported the petition with factual allegations of an evidentiary nature or provided other competent proof to establish that the food was contaminated and that he was injured thereby. Supreme Court properly dismissed this facially deficient petition, given the absence of any underlying support for petitioner’s conclusory allegations (see, Matter of Barnes v La Vallee, 39 NY2d 721, 722; Matter of Young v Coughlin, 144 AD2d 753, 754, lv dismissed 74 NY2d 625; Matter of Sebastiano v Harris, 76 AD2d 1004, 1005, affd 54 NY2d 1014; compare, Matter of Rivera v Smith, 63 NY2d 501, 512).

Judgment affirmed, without costs. Casey, J. P., Weiss, Levine, Mercure and Harvey, JJ., concur.