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In the Matter of Mark v. Brian Fischer

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


May 16, 2013

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

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered April 30, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: April 3, 2013

Before: Peters, P.J., Rose, Stein and McCarthy, JJ.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. Respondents moved to dismiss the petition on the grounds that it failed to state a cause of action and does not set forth sufficiently clear and concise statements in consecutively numbered paragraphs. Supreme Court granted the motion, finding that the petition lacked the necessary specificity as required by CPLR 3013. This appeal ensued.

We affirm. CPLR 3013 requires that a petition be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." We agree with Supreme Court that, even considering the attached misbehavior report and the accompanying affidavit by petitioner, the conclusory and generalized statements are insufficient to meet the requirements of CPLR 3013. Moreover, the untitled document attached to the petition consisting of unnumbered paragraphs is not sworn to or notarized and, therefore, cannot be considered (see Matter of Ali v Goord, 15 AD3d 699, 700 [2005]). Accordingly, the motion was properly granted dismissing the petition (see Matter of Pettus v New York State Dept. of Correctional Servs., 77 AD3d 996 [2010]; Matter of Escalera v State of New York, 67 AD3d 1137, 1138 [2009]; Matter of Johnson v Goord, 290 AD2d 844, 845 [2002]).

Peters, P.J., Rose, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130516

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