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Torres v. Fischer

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


May 20, 2010

IN THE MATTER OF RICHARD TORRES, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Cardona, P.J., Mercure, Rose, Lahtinen and Stein, JJ.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered July 2, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

While incarcerated at Mohawk Correctional Facility in Oneida County, a recommendation was made that petitioner participate in the sex offender counseling and treatment program. Unhappy with this recommendation, petitioner sent a letter of complaint to the Director of Guidance and Counseling at the Department of Correctional Services. The Director adhered to the recommendation. Petitioner, in turn, commenced this CPLR article 78 proceeding, which respondent moved to dismiss based upon petitioner's failure to exhaust his administrative remedies. Supreme Court granted respondent's motion and this appeal ensued.

We affirm. Matters of the nature that petitioner seeks to challenge in the case at bar are the proper subjects of the inmate grievance procedure (see 7 NYCRR 701.2 [a]; compare 7 NYCRR 701.3 [e]; see e.g. Matter of Martin v Goord, 45 AD3d 992 [2007], appeal dismissed 10 NY3d 756 [2008]). Given that petitioner did not avail himself of this procedure prior to commencing the instant proceeding, Supreme Court properly concluded that he failed to exhaust his administrative remedies (see Matter of Rivera v Nuttall, 30 AD3d 855, 855-856 [2006]; Matter of Lugo v Goord, 24 AD3d 987, 988 [2005]). His letter of complaint did not remedy this defect (see Matter of Fernandez v Goord, 53 AD3d 961, 961-962 [2008]; Matter of Muniz v David, 16 AD3d 939 [2005]). Therefore, dismissal of the petition was appropriate.

Cardona, P.J., Mercure, Rose, Lahtinen and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100520

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