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In the Matter of Robert Davis v. Brian Fischer

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


June 23, 2011

IN THE MATTER OF ROBERT DAVIS, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered June 11, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

MEMORANDUM AND ORDER

Calendar Date: May 11, 2011

Before: Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ.

Petitioner, a prison inmate, filed a grievance contending that facility officials were denying him a pair of medically prescribed orthotic boots. When that grievance was ultimately denied by the Central Office Review Committee, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.

We affirm. The record establishes that petitioner was fitted for medical boots and they were made available to him but that he refused them and insisted on a different size and style.

As a result, we do not find that petitioner has demonstrated that the Department of Correctional Services has neglected or shown deliberate indifference to his medical needs in violation of his 8th Amendment rights (see Matter of Wooley v New York State Dept. of Correctional Servs., 61 AD3d 1189, 1190 [2009], affd 15 NY3d 275 [2010]; Matter of Scott v Goord, 32 AD3d 638, 639 [2006]). Accordingly, the denial of his grievance was not arbitrary and capricious or affected by an error of law (see Matter of Raqiyb v Goord, 28 AD3d 892, 893 [2006]; Matter of Pittman v Portuondo, 307 AD2d 485, 485-486 [2003]).

Petitioner's remaining contentions have been reviewed and found to be without merit.

Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110623

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