Matter of Gutierrez v. Annucci

2017 NY Slip Op 5087, 151 A.D.3d 966, 54 N.Y.S.3d 307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2017
• Docket: 2015-09277
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Corrections and Community Supervision Inmate Grievance Program Superintendent dated September 29, 2014, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Dutchess County (Posner, J.), dated June 26, 2015, which granted the respondent’s motion to dismiss the petition and, in effect, denied the petition and dismissed the proceeding.

Ordered that the order and judgment is affirmed, without costs or disbursements.

The Supreme Court properly granted the respondent’s motion to dismiss the petition in this CPLR article 78 proceeding for failure to state a cause of action (see Matter of Brown v Foster, 73 AD3d 917, 918 [2010]). Contrary to the petitioner’s contention that he was entitled to immediate release from the custody of the New York State Department of Corrections and Community Supervision (hereinafter DOCCS), the termination of federal immigration proceedings to remove him from the country does not entitle him to be released from DOCCS custody prior to the conclusion of his sentence (see Loaiza v Immigration & Naturalization Serv., 1998 WL 863126, *4, 1998 US Dist LEXIS 19335, *11 [ED NY, Dec. 8, 1998, No. 98-CV-1112 (FB)]).

Accordingly, the Supreme Court properly determined that the petition fails to state a cause of action and, in effect, denied the petition and dismissed the proceeding.

The petitioner’s remaining contention need not be reached in light of our determination.

Balkin, J.P., Hall, Hinds-Radix and Connolly, JJ., concur.