Ramirez v. Annucci

134 A.D.3d 1377, 21 N.Y.S.3d 644

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2015
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered May 6, 2015 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner commenced this proceeding challenging the denial of two grievances related to the inspection of and subsequent discovery of a weapon in his cell. Prior to respondents filing an answer, petitioner moved to consolidate the instant proceeding with a related CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of possessing a weapon. Supreme Court, noting that it no longer had jurisdiction over one of the proceedings because it had been transferred to this Court, denied the motion to consolidate and then dismissed the petition. This appeal ensued.

Although the merits of the motion to consolidate were properly decided, Supreme Court erred when it inexplicably dismissed the petition. In addition to the fact that respondents had not yet filed an answer, Supreme Court did not address the merits of the grievance determinations in dismissing the petition. In view of the foregoing, the judgment must be modified and matter must be remitted for Supreme Court to address the merits of the petition.

Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed the petition; matter remitted to the Supreme Court to permit respondents to serve an answer within 20 days of the date of this Court’s decision; and, as so modified, affirmed.