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In the Matter of Jack Davis v. Brian Fischer

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


February 3, 2011

IN THE MATTER OF JACK DAVIS, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (McGrath, J.), entered February 4, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services transferring petitioner to another correctional facility.

Decided and Entered: February 3, 2011

MEMORANDUM AND ORDER

Calendar Date: December 16, 2010

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

After petitioner was transferred from Fishkill Correctional Facility in Dutchess County to Mid-State Correctional Facility in Oneida County, he commenced this CPLR article 78 proceeding, alleging, among other things, that his transfer was in retaliation for concerns he had expressed in his role on the inmate liaison committee about the alleged misappropriation of funds from vending machines. Supreme Court dismissed the petition, and this appeal ensued.

We affirm. Initially, we note that the Commissioner of Correctional Services maintains broad discretion to transfer inmates from one correctional facility to another and an inmate has no right to remain at a particular facility (see Correction Law § 23 [1]; Matter of Lugo v Goord, 49 AD3d 1114, 1115 [2008], lv denied 10 NY3d 714 [2008]; Matter of Salahuddin v Coughlin, 222 AD2d 950, 951-952 [1995], lv denied 88 NY2d 806 [1996], cert denied 519 US 937 [1996]). Here, contrary to petitioner's unsubstantiated allegations, the record demonstrates that his transfer was precipitated by a physical altercation with another inmate, who claimed that petitioner had been attempting to extort him. Thus, petitioner has demonstrated no circumstances that would warrant this Court's interference with the Commissioner's broad discretion regarding transfers (see Matter of Burr v Goord,8 AD3d 853, 854 [2004]). We have examined petitioner's remaining contentions and find them to be without merit.

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20110203

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