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Pettus v. Department of Correctional Services

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


April 22, 2010

IN THE MATTER OF JAMES PETTUS, APPELLANT,
v.
DEPARTMENT OF CORRECTIONAL SERVICES ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: March 1, 2010

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

Appeal from a judgment of the Supreme Court (Connolly, J.), entered May 29, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner is an inmate incarcerated at Southport Correctional Facility in Chemung County. He commenced this CPLR article 78 proceeding apparently challenging certain actions of the warden of the facility. Petitioner, however, failed to specify the precise nature of the actions being challenged in the petition. As a result, respondents moved to dismiss the petition for, among other things, failure to state a cause of action. Supreme Court granted the motion and this appeal ensued.

We affirm. Upon reviewing the petition, we agree that the allegations are vague, conclusory and do not clearly identify the actions by which petitioner is aggrieved. The proceeding, however, appears to be in the nature of mandamus to compel inasmuch as petitioner requests relief consisting of an order allowing him to use certain forms for copying and mailing his legal documents and allowing him access to the courts. Given that it was incumbent upon petitioner as the party bringing a proceeding of this nature to "present[] factual allegations of an evidentiary nature or other competent evidence tending to establish his or her entitlement to the requested relief" (Matter of Rodriguez v Goord, 260 AD2d 736, 736-737 [1999], lv denied 93 NY2d 818 [1999]; see Matter of Henriquez v New York State Dept. of Correctional Servs., 61 AD3d 1191, 1192 [2009]; see also Matter of Barnes v LaVallee, 39 NY2d 721, 722-723 [1976]), and he failed to do so, Supreme Court properly dismissed the petition.

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

ORDERED that the judgment is affirmed, without costs.

20100422

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