| Matter of Davis v Burge |
| 2008 NY Slip Op 08212 [55 AD3d 1162] |
| October 30, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert Davis, Appellant, v John W. Burge, asSuperintendent of Elmira Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Tait, J.), entered October 3, 2006 inChemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article78, to review a determination of the Central Office Review Committee denying petitioner's grievanceand a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging (1) adetermination of the Central Office Review Committee which denied his grievance alleging that he hadbeen verbally harassed by a correction officer and (2) a tier II disciplinary determination of respondentwhich found him guilty of being out of place after he was observed in the G block area instead of thehospital area where he was assigned to work. Supreme Court dismissed the petition and this appealensued.
We affirm. The record reveals that a complete investigation was conducted of the allegations setforth in petitioner's grievance, including interviewing witnesses, and it was determined that petitioner'sclaims were unsubstantiated. Under these circumstances, we cannot [*2]conclude that the denial of his grievance was arbitrary and capricious,irrational, or otherwise affected by an error of law (see Matter of Dallio v Goord, 15 AD3d 803, 804 [2005], lvdenied 5 NY3d 709 [2005]; Matter ofHarty v Goord, 3 AD3d 701, 702 [2004]). As for petitioner's assertion that the misbehaviorreport was issued in retaliation for his filing of the grievance, that claim is unpreserved for our review byvirtue of petitioner's failure to raise it at his disciplinary hearing or on administrative appeal (see Matter of James v Goord, 38 AD3d1074, 1074 [2007]). Courts reviewing administrative determinations have no authority to reviewclaims raised for the first time in a special proceeding (see Matter of Khan v New York State Dept.of Health, 96 NY2d 879, 880 [2001]; Matter of World Buddhist Ch'An Jing Ctr., Inc. v Schoeberl, 45 AD3d947, 951 [2007]).
Petitioner's remaining contentions have been considered and found to be unavailing.
Mercure, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.