RESTITUYO v. BERBARY (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Aristides S. RESTITUYO, Petitioner-Respondent, v. James L. BERBARY, Superintendent, Collins Correctional Facility, and Glenn S. Goord, Commissioner, New York State Department of Correctional Services, Respondents-Appellants.

Decided: December 27, 2000

PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE and LAWTON, JJ.

Robert M. Goldfarb, Albany, for respondents-appellants. Aristides S. Restituyo, petitioner-respondent.

Supreme Court erred in granting the CPLR article 78 petition seeking reinstatement of petitioner into the sexual offenders treatment group at Collins Correctional Facility. “ ‘It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion’ ” (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 232, 356 N.Y.S.2d 833, 313 N.E.2d 321, quoting Matter of Diocese of Rochester v. Planning Bd., 1 N.Y.2d 508, 520, 154 N.Y.S.2d 849, 136 N.E.2d 827; see, Matter of Arrocha v. Board of Educ., 93 N.Y.2d 361, 363-364, 690 N.Y.S.2d 503, 712 N.E.2d 669; Matter of Wagschal v. Board of Examiners, 69 N.Y.2d 672, 674, 511 N.Y.S.2d 836, 503 N.E.2d 1373). The court failed to find that respondents' determination was arbitrary and unreasonable or an abuse of discretion, nor would the record support such a finding.

Judgment unanimously reversed on the law without costs and petition dismissed.

MEMORANDUM:

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