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In the Matter of Robert v. John Gialanella

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


February 2, 2012

IN THE MATTER OF ROBERT CARDEW, APPELLANT,
v.
JOHN GIALANELLA, RESPONDENT,
AND BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

Appeal from an order of the Supreme Court (Gilpatric, J.), entered April 18, 2011 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR 5225 (b), to direct the Department of Corrections and Community Supervision to turn over certain moneys to petitioner.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: January 13, 2012

Before: Mercure, Acting P.J., Peters, Malone Jr., Kavanagh and McCarthy, JJ.

In September 2000, petitioner, a prison inmate, commenced an action against respondent John Gialanella, a fellow inmate, for injuries resulting from a prison assault. In October 2002, petitioner was granted summary judgment in the action and was awarded damages in the amount of $5,000 plus interest. Subsequently, Supreme Court (Bradley, J.) granted petitioner's motion to encumber Gialanella's inmate fund trust account. As of August 2010, the debt owed to petitioner had increased to $8,150 due to the accumulation of interest and he was informed by prison officials that $1,899.34 had been collected on the encumbrance and held in Gialanella's account. In response, petitioner commenced this proceeding pursuant to CPLR 5225 (b) to compel the Department of Corrections and Community Supervision (hereinafter DOCCS) to turn over the encumbered funds to him. Respondents opposed the petition, asserting that, pursuant to DOCCS Directive No. 2788, the monies encumbered pursuant to petitioner's judgment were to be held in Gialanella's account until either the full amount of the encumbrance was collected or Gialanella is paroled or released. Supreme Court dismissed the petition and petitioner now appeals.

We reverse. Undoubtedly, respondent Commissioner of Corrections and Community Supervision is granted broad discretion to implement policies relating to the management of correctional facilities, including fiscal control (see Correction Law § 112; Matter of Nardi v Le Fevre, 235 AD2d 602, 602 [1997], lv denied 89 NY2d 817 [1997]; Matter of Allah v Coughlin, 190 AD2d 233, 236 [1993], lvs denied 82 NY2d 659, 660 [1993]). However, just as well settled is the principle that an administrative agency may not adopt regulations that are inconsistent with statutory language or its underlying purposes (see generally Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 608 [2009]; Matter of County of Westchester v Board of Trustees of State Univ. of N.Y., 32 AD3d 653, 655 [2006], mod 9 NY3d 833 [2007]; Matter of Gilligan v Stone, 20 AD3d 697, 700 [2005]). As applicable here, the dictates of CPLR 5225 (b) are unequivocal - where a person is in possession of money in which a judgment debtor has an interest, upon the commencement of a special proceeding, "the court shall require such person to pay the money" to the judgment creditor. Inasmuch as petitioner demonstrated that DOCCS is in possession or custody of money belonging to Gialanella, Supreme Court erred in dismissing the petition (see generally Eastern Fed. Sav. & Loan Assn. v Sabatine, 76 AD2d 899 [1980], appeal dismissed 33 NY2d 839 [1981]; Matter of Preston Farms, Inc. v Nacri, 42 AD2d 668 [1973]).

Mercure, Acting P.J., Peters, Kavanagh and McCarthy, JJ., concur.

ORDERED that the order is reversed, without costs, petition granted and the Department of Corrections and Community Supervision is ordered to pay to petitioner all money encumbered from respondent John Gialanella's inmate account pursuant to petitioner's October 2002 judgment.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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