Calendar Date: December 17, 2019
Hendricks, Dannemora, appellant pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of
counsel), for respondents.
Before: Lynch, J.P., Clark, Mulvey, Devine and Reynolds
REYNOLDS FITZGERALD, J.
(1) from a judgment of the Supreme Court (Feldstein, J.),
entered March 18, 2019 in Clinton County, which, in a
proceeding pursuant to CPLR article 78, among other things,
granted respondents' motion to dismiss the petition, and
(2) from an order of said court, entered March 12, 2019 in
Clinton County, which dismissed the amended petition.
petitioner was removed from his job in the prison tailor
shop, he filed a grievance claiming that his removal was for
retaliatory reasons. The Inmate Grievance Resolution
Committee denied the grievance and the denial was
subsequently upheld by respondent Superintendent of Clinton
Correctional Facility. On February 6, 2018, petitioner
appealed to the Central Office Review Committee (hereinafter
CORC). In April 2018, prior to receiving a determination from
CORC on the administrative appeal, petitioner commenced this
CPLR article 78 proceeding challenging the denial of the
grievance. Respondents, in turn, moved to dismiss the
petition on the ground that petitioner failed to exhaust
administrative remedies. Before Supreme Court decided the
motion, petitioner sought to file an amended petition. By
letter, denominated an order, Supreme Court declined to
consider the amended petition because petitioner failed to
seek leave to amend the petition. The court then issued a
judgment granting respondents' motion and dismissed the
petition. Petitioner appeals.
contends, among other things, that Supreme Court erroneously
dismissed his petition for failure to exhaust administrative
remedies. Specifically, he asserts that he timely appealed
the grievance determination to CORC and commenced this CPLR
article 78 proceeding only after CORC failed to issue a
determination within 30 days as required by 7 NYCRR 701.5 (d)
(3) (iii). That regulation provides, in relevant part, that
"CORC shall review each appeal, render a decision on the
grievance, and transmit its decision to the facility... and
any direct parties within 30 calendar days from the time the
appeal was received" (7 NYCRR 701.5[d]  [ii]). It is
undisputed that CORC did not render its decision within 30
days of petitioner's February 6, 2018 appeal. However,
contrary to petitioner's claim, this Court has held that
the time limitations set forth in 7 NYCRR 701.5 (d) (3) (ii)
are directory, not mandatory (see Matter of Golston v
Director of Div. of Nutritional Servs., 168 A.D.3d 1299,
1300 ; Matter of Jones v Fischer, 110 A.D.3d
1295, 1296 , appeal dismissed 23 N.Y.3d 955');">23 N.Y.3d 955
). As such, petitioner must demonstrate that he was
substantially prejudiced by CORC's delay in issuing a
decision (see Matter of Golston v Director of Div. of
Nutritional Servs., 168 A.D.3d at 1300; Matter of
Jones v Fischer, 110 A.D.3d at 1296). Petitioner has not
made that showing here. Accordingly, we find no error in
Supreme Court's dismissal of the petition as premature.
also challenges Supreme Court's failure to consider his
amended petition and asserts that, because respondents'
motion to dismiss was still pending at that time, he was not
required to obtain leave of court. We are not persuaded. The
procedure governing CPLR article 78 proceedings is set forth
in CPLR 7804. With regard to pleadings, CPLR 7804 (d)
specifically provides for service of a verified petition,
verified answer and reply to a counterclaim or to new matter
in the answer. As for other pleadings, the statute states
that "[t]he court may permit such other pleadings as are
authorized in an action upon such terms as it may
specify" (CPLR 7804 [d]; see CPLR 402;
Matter of Nagubandi v Polentz, 131 A.D.3d 639, 641
; Matter of Gomez v Fischer, 101 A.D.3d 1195,
1196 ). In view of this, it was incumbent upon
petitioner to obtain the court's permission to file the
amended petition and, having failed to do so, Supreme Court
was not bound to consider it.
considered petitioner's remaining contentions and find
them to be unavailing.
J.P., Clark, Mulvey and Devine, JJ., concur.
that the judgment and order are ...