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Fulton v. Futia

State of New York Supreme Court, Appellate Division Third Judicial Department


March 25, 2010

IN THE MATTER OF ALVIN FULTON JR., APPELLANT,
v.
FRANK FUTIA, AN EMPLOYEE OF COXSACKIE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: January 25, 2010

Before: Cardona, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered May 27, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner, acting pro se, prepared the order to show cause commencing this CPLR article 78 proceeding seeking to challenge a prison disciplinary determination. Supreme Court dismissed the petition on the ground that petitioner failed to exhaust his administrative remedies. Petitioner now appeals.

We affirm. Inasmuch as petitioner failed to demonstrate that he pursued an administrative appeal, Supreme Court properly concluded that dismissal for failure to exhaust his administrative remedies was appropriate (see Matter of Dagnone v Goord, 298 AD2d 789, 790 [2002]; Matter of Tafari v McGinnis, 287 AD2d 844, 845 [2001]). Accordingly, we find no basis to disturb the dismissal of the petition.

Cardona, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100325

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