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In the Matter of William Vega v. Brian Fischer

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


January 26, 2012

IN THE MATTER OF WILLIAM VEGA, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered December 10, 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: December 12, 2011

Before: Mercure, Acting P.J., Rose, Kavanagh, Stein and Egan Jr., JJ.

In July 2009, petitioner, a prison inmate, requested permission to participate in an apprenticeship training program for legal clerks that was administered by the Department of Labor. In January 2010, petitioner was informed by letter that the Department of Labor was no longer accepting applications for non-vocational Human Services apprenticeships. He thereafter filed a grievance against staff of both the facility and the Department of Corrections and Community Supervision, contending that he was arbitrarily denied participation and seeking retroactive enrollment in the program. Ultimately, the grievance was denied by the Central Office Review Committee. Petitioner thereafter commenced this CPLR article 78 proceeding and Supreme Court dismissed the petition. Petitioner appeals and we affirm.

Pursuant to 7 NYCRR 701.3 (f), an action taken by an entity not under the supervision of the Commissioner of Corrections and Community Supervision is not within the jurisdiction of the inmate grievance program (see generally Matter of Justice v Fischer, 74 AD3d 1648, 1648 [2010], lv denied 15 NY3d 710 [2010]). Although the gravamen of petitioner's complaint is that facility staff were neglectful in failing to submit his apprenticeship application in a timely manner, the fact remains that enrollment into the program is ultimately at the discretion of the Department of Labor; thus, the relief which petitioner seeks is outside the province of the grievance process. As such, we cannot say that the denial of his grievance by the Central Office Review Committee was arbitrary and capricious (see Matter of Abreu v Fischer, 87 AD3d 1213, 1213 [2011]; Matter of Lopez v Fischer, 83 AD3d 1230, 1231 [2011], lv denied 17 NY3d 709 [2011]).

Mercure, Acting P.J., Rose, Kavanagh, Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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