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In the Matter of Donald Self v. Norman Bezio

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


June 23, 2011

IN THE MATTER OF DONALD SELF, APPELLANT,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered September 22, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: May 11, 2011

Before: Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ.

Petitioner was charged in a misbehavior report with possessing a weapon and was found guilty of the charge in a disposition rendered October 9, 2009 following a tier III disciplinary hearing. Petitioner did not file an administrative appeal within 30 days of the date of the disposition, but made requests in December 2009 and January 2010 to file a late appeal. These requests were denied. He then commenced this CPLR article 78 proceeding challenging the prison disciplinary determination. Respondent moved to dismiss the proceeding for failure to exhaust administrative remedies. Supreme Court granted the motion and dismissed the petition, resulting in this appeal.

We affirm. Petitioner had 30 days within which to take an administrative appeal from the prison disciplinary determination at issue (see 7 NYCRR 254.8). It is undisputed that he did not do so in a timely manner and, under the circumstances presented, we find no error in the denial of his requests to file a late appeal. Therefore, Supreme Court properly dismissed the petition for failure to exhaust administrative remedies (see Matter of Ifill v Fischer, 79 AD3d 1322, 1322 [2010]; Matter of Fulton v Futia, 71 AD3d 1356 [2010]; Matter of Tafari v McGinnis, 287 AD2d 844, 845 [2001]).

Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110623

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