| Matter of Applegate v Heath |
| 2011 NY Slip Op 07035 [88 AD3d 699] |
| October 4, 2011 |
| Appellate Division, Second Department |
| In the Matter of Bradford Applegate,Petitioner/Plaintiff, v Phillip D. Heath, Superintendent of Sing Sing CorrectionalFacility, Respondent/Defendant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andPatrick J. Walsh of counsel), for respondent/defendant.
Hybrid proceeding pursuant to CPLR article 78 to review (1) a determination of therespondent/defendant, Phillip D. Heath, Superintendent of Sing Sing Correctional Facility, datedOctober 26, 2009, which confirmed a determination of a hearing officer, dated October 12, 2009,made after a tier II disciplinary hearing, that the petitioner/plaintiff was guilty of violating prisondisciplinary rules, and imposed a penalty, and (2) a determination of the New York StateDepartment of Correctional Services Inmate Grievance Program Central Office ReviewCommittee, dated February 10, 2010, which confirmed a determination of the Superintendent ofthe New York State Department of Correctional Services Inmate Grievance Program, datedNovember 9, 2009, denying, in part, the petitioner/plaintiff's grievance, and action for a judgmentdeclaring that Department of Correctional Services Directive No. 4421 (7 NYCRR 721.2 [b] [1])is unconstitutional, which was transferred to this Court by order of the Supreme Court,Westchester County (Zambelli, J.), dated September 21, 2010.
Ordered that the determinations dated October 26, 2009, and February 10, 2010, areconfirmed, the petition is denied, without costs or disbursements, and the matter is remitted tothe Supreme Court, Westchester County, for further proceedings on the cause of action for ajudgment declaring that Directive 4421 (7 NYCRR 721.2 [b] [1]) is unconstitutional, and theentry of an appropriate judgment thereafter, inter alia, dismissing the proceeding.
Contrary to the contention of the petitioner/plaintiff (hereinafter the petitioner), there wassubstantial evidence supporting the hearing officer's determination that he was guilty of [*2]violating prison disciplinary rules (see Matter of Benson v Brown, 84AD3d 794 [2011]; Matter ofWatson v Fischer, 82 AD3d 780 [2011]; Matter of Mabry v Maddox, 57 AD3d 1000 [2008]). We find nobasis to disturb the credibility determinations made by the hearing officer (see Matter of Benson v Brown, 84AD3d 794 [2011]; Matter of Reyesv Leclaire, 49 AD3d 884 [2008]).
Additionally, the partial denial of the petitioner's inmate grievance, asserting, inter alia, thathis legal mail was improperly treated as general correspondence, was not arbitrary and capricious(see generally Matter of Davis vFischer, 76 AD3d 1152 [2010]; Matter of Keesh v Smith, 59 AD3d 798 [2009]). The petitionerfailed to demonstrate that the mailing bore the identity and official business return address of hisattorney (see 7 NYCRR 721.2 [b] [1]).
Since the petition/complaint also requested a declaratory judgment, relief for which a transferto this Court is not authorized pursuant to CPLR 7804 (g) (see Matter of Coleman v Town of Eastchester, 70 AD3d 940, 941[2010]; Matter of Huntington HillsAssoc., LLC v Town of Huntington, 49 AD3d 647, 648 [2008]; Matter of Herman v Incorporated Vil. ofTivoli, 45 AD3d 767, 769 [2007]), the matter must be remitted to the Supreme Court,Westchester County, for further proceedings on the cause of action seeking such relief, and theentry of an appropriate judgment thereafter, inter alia, dismissing the proceeding. Skelos, J.P.,Dickerson, Leventhal and Lott, JJ., concur.