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

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


October 7, 2010

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

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

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

Appeal from a judgment of the Supreme Court (Donohue, J.), entered March 19, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, a prison inmate confined to the special housing unit, commenced this CPLR article 78 proceeding alleging violations of his due process and liberty interests. Supreme Court granted respondents' preanswer motion to dismiss the petition, finding that petitioner failed to state a cause of action. CPLR 3013 requires that pleadings "be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Here, the petition includes only generalized and conclusory statements -- specifically, that petitioner is nonviolent, is not a threat to the safety and order of the facility and has never committed a violent criminal act or serious prison infraction -- which are insufficient to state a cause of action. Accordingly, the petition was properly dismissed (see Matter of Abreu v Hogan, 72 AD3d 1143, 1143-1144 [2010]; Matter of Escalera v State of New York, 67 AD3d 1137, 1138-1139 [2009]).

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

ORDERED that the judgment is affirmed, without costs.

20101007

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