| Matter of Abreu v Hogan |
| 2010 NY Slip Op 02692 [72 AD3d 1143] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Carlos Abreu, Appellant, v Michael F. Hogan, asCommissioner of Mental Health, et al., Respondents. |
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Egan Jr., J. Appeal from a judgment of the Supreme Court (Devine, J.), entered July 6, 2009in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents'motion to dismiss the petition.
In this CPLR article 78 proceeding, petitioner challenges numerous prison disciplinarydeterminations rendered against him from October 2002 to September 2008 and the denial ofpetitioner's grievance challenging certain correctional facility practices and procedures. SupremeCourt granted respondents' pre-answer motion to dismiss the petition, finding that the challengesto the disciplinary determinations issued prior to May 2008 were time-barred and the challengesto the disciplinary determinations made subsequent to May 2008 failed to comply with therequirements of CPLR 3013. The court did not address petitioner's challenge to the July 25, 2008determination by the Central Office Review Committee (hereinafter CORC) regarding theunavailability of a sex offender program at petitioner's facility. Petitioner now appeals.
Initially, as the controlling four-month statute of limitations (see CPLR 217 [1]) hadexpired with respect to the final disciplinary determinations rendered against petitioner prior toMay 2008, Supreme Court properly dismissed the challenge to those determinations as untimely(see Matter of Smith v Goord, 42AD3d 839 [2007]). In addition, petitioner's conclusory and factually unsupported allegationsin the amended petition concerning the remaining disciplinary determinations rendered inSeptember 2008 were not "sufficiently particular to give the court and parties notice of thetransactions, occurrences, or series of transactions or occurrences, intended to be proved and thematerial elements of each cause of action" (CPLR 3013). Therefore, the challenges to thosedeterminations were also properly dismissed (see Matter of Escalera v State of New York, 67 AD3d 1137,1137-1138 [2009]; Matter of Johnson v Goord, 290 AD2d 844, 844-845 [2002]).
Although not addressed by Supreme Court, we find that petitioner did sufficiently state acause of action regarding the July 25, 2008 determination by CORC denying his grievancechallenging the unavailability of a sex offender program at petitioner's facility. As we are alsosatisfied that petitioner exhausted his administrative remedies with respect to this contention,respondents' motion to dismiss should have been denied with respect to CORC's July 25, 2008determination, and we remit to Supreme Court for a determination as to that issue.
Finally, as respondent Commissioner of Mental Health was not involved in the disciplinarydeterminations or the grievance procedure and is without authority to grant relief requested bypetitioner, he is not a proper party to this proceeding (see Matter of Cepeda v Murray,228 AD2d 749 [1996]).
Petitioner's remaining contentions have been examined and found to be lacking in merit.
Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as granted respondents' motiondismissing that portion of the petition challenging the unavailability of a sex offender program atpetitioner's facility; motion denied to that extent and matter remitted to the Supreme Court topermit respondents to serve an answer within 15 days of the date of this Court's decision; and, asso modified, affirmed.