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Wooley v. New York State Dep't of Correctional Services

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

IN THE MATTER OF ROBERT WOOLEY, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: March 2, 2009

Before: Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered January 30, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging the denial of a grievance he filed seeking to compel facility medical personnel to provide him with certain medication he deemed necessary to treat his hepatitis C. Supreme Court dismissed petitioner's application finding, among other things, that the denial of the grievance was rational. This appeal by petitioner ensued.

We affirm. Although petitioner's treating physicians were of the view that placing petitioner on a maintenance dose of the drug in question "would be a reasonable strategy to stave off progression" of his disease, they also readily acknowledged that this approach was not approved by the Food and Drug Administration and there were no long-term studies to document the effectiveness of this treatment facts that were confirmed by the drug's manufacturer. Based upon our review of the record as a whole, and in light of the experimental nature of the proposed treatment, we cannot say that respondent's refusal to prescribe the requested medication was arbitrary and capricious or affected by an error of law (see Matter of Raqiyb v Goord, 28 AD3d 892, 893 [2006]). Nor are we persuaded that, in so doing, respondent "evince[d] a deliberate indifference to [petitioner's] serious medical needs" (Matter of Singh v Eagen, 236 AD2d 654, 655 [1997]; see Matter of Scott v Goord, 32 AD3d 638, 639 [2006]; People ex rel. Sandson v Duncan, 306 AD2d 716, 717 [2003], lv denied 1 NY3d 501 [2003]). Accordingly, petitioner failed to demonstrate a violation of his 8th Amendment rights. Petitioner's remaining contentions have been considered and are without merit.

Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090416

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