| Matter of Green v Selsky |
| 2008 NY Slip Op 03532 [50 AD3d 1405] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Shawn Green, Appellant, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondents.
Carpinello, J. Appeals (1) from an order of the Supreme Court (Ceresia, Jr., J.), enteredNovember 8, 2006 in Albany County, which, in a proceeding pursuant to CPLR article 78,partially granted respondents' motion to dismiss the petition, and (2) from a judgment of saidcourt, entered July 2, 2007 in Albany County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of the Central Office ReviewCommittee denying his grievance.
Petitioner commenced this CPLR article 78 proceeding by order to show cause seeking tochallenge a prison disciplinary determination and the denial of two inmate grievances. The orderto show cause required petitioner to serve respondents and the Attorney General with, amongother things, any exhibits. Respondents thereafter moved to dismiss the petition contending,among other things, that petitioner failed to comply with the service requirements in general andfailed to exhaust his administrative remedies with regard to the first of the subject grievances. Byorder entered November 8, 2006, Supreme Court partially granted respondents' [*2]motion, finding that petitioner indeed did not comply with theservice requirements and, hence, failed to obtain personal jurisdiction over respondents withregard to the disciplinary determination. Supreme Court further concluded that petitionerneglected to take an administrative appeal from the denial of his initial grievance and dismissedthat aspect of petitioner's claim for failure to exhaust his administrative remedies. Followingadditional proceedings, Supreme Court, by judgment entered July 2, 2007, dismissed petitioner'schallenge to the remaining grievance, finding that the denial thereof had a rational basis. Theseappeals by petitioner ensued.[FN*]
We affirm. Preliminarily, we agree with respondents that inasmuch as the underlying petitionand accompanying memorandum of law referenced and directed Supreme Court's attention to allthree administrative decisions, i.e., the prison disciplinary determination and the denial of thetwo inmate grievances, any failure to comply with the service requirements set forth in the orderto show cause should have resulted in the dismissal of the petition in its entirety. In this regard,the case law makes clear that "an inmate's failure to comply with the service requirements of anorder to show cause will result in the dismissal of the petition unless the inmate demonstratesthat obstacles presented by his or her imprisonment prevented compliance" (Matter of Hughes v Dennison, 40AD3d 1297, 1297 [2007]). No such showing was made here and, thus, petitioner did notacquire personal jurisdiction over respondents (see Matter of Wise v New York State Div. of Parole, 37 AD3d 959,960 [2007]).
In light of this conclusion, we need not reach the remaining issues presented on this appeal.Were we to do so, however, we would agree that Supreme Court properly dismissed petitioner'schallenge to the denial of his initial grievance for failure to exhaust administrative remedies, asthe record indicates that petitioner did not appeal this denial to the Central Office ReviewCommittee (see Matter of Allen vGoord, 4 AD3d 635, 636 [2004]; see also Matter of Chaney v Van Guilder, 14 AD3d 739, 740[2005]). To the extent that petitioner challenges the denial of his subsequent grievance, ourreview of the record reveals that a rational basis exists for the denial thereof and, as such, thatdetermination will not be disturbed.
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order and judgmentare affirmed, without costs.
Footnote *: Regarding petitioner's appealfrom the order entered November 8, 2006, we need note only that to the extent that SupremeCourt partially dismissed the petition, such order was final and, hence, appealable (compareMatter of Sutherland v Glennon, 209 AD2d 898 [1994]). As to petitioner's appeal from theresulting judgment, we will exercise our discretion and, in the interest of justice, treat thepremature notice of appeal as valid (see CPLR 5520 [c]).