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In the Matter of John Brooks v. Brian Fischer

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


May 24, 2012

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

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered August 3, 2011 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 petitioner's grievance.

MEMORANDUM AND ORDER

Calendar Date: April 4, 2012

Before: Rose, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

Petitioner, an inmate at Groveland Correctional Facility in Livingston County, filed a grievance in February 2011 to, among other things, challenge the rate of pay for his employment in the food service program. His grievance was ultimately denied by the Central Office Review Committee after which petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.

We affirm. Our review of the denial of an inmate grievance is limited to whether such determination was arbitrary and capricious or without a rational basis (see Matter of Abreu v Hogan, 91 AD3d 996 [2012]; Matter of Pride v New York State Dept. of Correctional Servs., 91 AD3d 1003, 1004 [2012]). Initially, we reject petitioner's contention that a Supreme Court judgment issued in 2000 was controlling regarding his rate of pay. Department of Corrections and Community Supervision Directive No. 4310, which prescribes food service pay rates, was revised in 2001, and petitioner acknowledges that he left and returned to food service after the revision was enacted. Accordingly, we find the 2000 judgment inapplicable. To the extent that petitioner challenges the Central Office Review Committee's interpretation of the 2001 revisions to Directive No. 4310, his argument is unpreserved based upon his failure to raise it during the administrative proceedings or in his petition (see Matter of Bunting v Fischer, 84 AD3d 1631, 1632 [2011], lv denied 17 NY3d 709 [2011]; Matter of Binkley v New York State Dept. of Correctional Servs., 64 AD3d 1063, 1064 [2009], lv denied 13 NY3d 886 [2009]).

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

Rose, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120524

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