PEOPLE MARTINEZ v. BEAVER (2004)

Petitioner commenced this proceeding challenging the determination of the Parole Board denying him release to parole supervision and ordering that he be held for 18 months.   Supreme Court erred in granting the amended petition and denying respondents' motion to dismiss the amended petition.   Petitioner's administrative appeal was pending at the time this proceeding was commenced, and thus the amended petition should have been dismissed based upon the failure of petitioner to exhaust his administrative remedies (see Matter of Robinson v. Bennett, 300 A.D.2d 715, 716, 752 N.Y.S.2d 730;  Matter of Wilson v. Goord, 269 A.D.2d 853, 703 N.Y.S.2d 338).   The record does not support petitioner's contention that exhaustion is not required because pursuit of the administrative appeal would have been futile (see Matter of Pfaff v. Columbia-Greene Community Coll., 99 A.D.2d 887, 472 N.Y.S.2d 480).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the amended petition is dismissed.

MEMORANDUM: