Tafari v. Artus

79 A.D.3d 1468, 912 N.Y.S.2d 461

Opinion

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered March 25, 2009 in Clinton County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner, a prison inmate, was served with a misbehavior report regarding an incident on April 14, 2008 for which he was charged with violating correspondence procedures. He was found guilty following a tier II disciplinary hearing and petitioner alleges that he submitted an appeal relative to that determination but received no response. Petitioner then commenced this CPLR article 78 proceeding to challenge the determination. Upon respondent’s motion, Supreme Court dismissed the petition and petitioner now appeals.

*

We affirm. Respondent supported the motion to dismiss with an affidavit from a representative of the Clinton Correctional Facility Inmate Records Coordinator Office stating that a search of the facility’s records revealed that no administrative appeal had been filed regarding the April 2008 determination. As such, Supreme Court correctly dismissed that part of the petition for petitioner’s failure to exhaust his administrative remedies (see Matter of Fulton v Futia, 71 AD3d 1356 [2010]; see generally Matter of Singleton v Dubray, 61 AD3d 1223, 1224 [2009]; Matter of Barclay v Summers, 60 AD3d 1181 [2009]).

Cardona, P.J., Peters, Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs. [Prior Case History: 2009 NY Slip Op 30682(U).]

The petition also sought to challenge a March 2008 determination finding petitioner guilty of smuggling. However, the Attorney General submitted an affidavit and supporting documentation establishing that said determination had been administratively reversed and all references thereto expunged from petitioner’s institutional record. Inasmuch as petitioner has received all the relief to which he is entitled with regard to that part of his petition, no appeal lies from that part of Supreme Court’s judgment (see Matter of Hoover v DiNapoli, 75 AD3d 875, 876 [2010]; Matter of Spaziani v City of Oneonta, 302 AD2d 846, 847 [2003]).