Rivera v. Coughlin

188 A.D.2d 725, 590 N.Y.S.2d 607, 1992 N.Y. App. Div. LEXIS 13528

Opinion

Appeal from a judgment of the Supreme Court (Kane, J.), entered March 16, 1992 in Sullivan County, which denied petitioner’s application, in a proceeding pursuant to CPLR article 78, to prohibit implementation of regulations imposing a surcharge on inmates found guilty of violating disciplinary rules after certain types of disciplinary proceedings.

Petitioner challenges the promulgation of regulations imposing a surcharge upon a finding that an inmate is guilty of violating disciplinary rules after certain types of disciplinary proceedings. An administrative body promulgating such regulations acts in a legislative capacity (see, Matter of Timber Point Homes v County of Suffolk, 155 AD2d 671, 674). Prohibition is unavailable where, as here, the challenge is to an administrative body’s legislative-type actions (see, Matter of American Tr. Ins. Co. v Corcoran, 65 NY2d 828, 830). Given the ability of petitioner to raise the validity of the regulations in an .administrative appeal and by way of a proceeding pursuant to CPLR article 78 if they are ever applied to him, we find no reason here to convert this proceeding to a declaratory judgment action (see, Matter of City of Newburgh v Public Empl. Relations Bd., 63 NY2d 793; Bower & Gardner v Evans, 60 NY2d 781).

Mikoll, J. P., Yesawich Jr., Levine, Mahoney and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.