IN RE: Willie STRONG (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that said petition is unanimously dismissed without costs.

Memorandum: Petitioner filed a grievance with the Incarcerated Grievance Resolution Committee (IGRC) challenging the calculation of his jail time credit (see 7 NYCRR 701.4, 701.5 [b]). IGRC denied the grievance, and petitioner's appeal to the facility superintendent was denied. Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination denying his grievance.

As a preliminary matter, we note that Supreme Court erred in transferring this proceeding to us pursuant to CPLR 7804 (g) on the ground that the petition raises an issue of substantial evidence. The determination was not “made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law” (CPLR 7803 [4]), and thus no issue of substantial evidence has been raised (see Matter of Bennefield v. Annucci, 122 A.D.3d 1329, 1330, 995 N.Y.S.2d 435 [4th Dept. 2014]; Matter of Shomo v. Zon, 35 A.D.3d 1227, 1227, 827 N.Y.S.2d 391 [4th Dept. 2006]). We nevertheless retain jurisdiction in the interest of judicial economy (see Bennefield, 122 A.D.3d at 1330, 995 N.Y.S.2d 435; Shomo, 35 A.D.3d at 1227, 827 N.Y.S.2d 391).

We conclude that petitioner failed to exhaust his administrative remedies with respect to the denial of his grievance, and we therefore dismiss the petition. “A petitioner must exhaust all administrative remedies before seeking judicial review unless an agency's action is challenged as either unconstitutional or wholly beyond its grant of power ․ or when resort to an administrative remedy would be futile ․ or when its pursuit would cause irreparable injury” (Bennefield, 122 A.D.3d at 1331, 995 N.Y.S.2d 435 [internal quotation marks omitted]; see Matter of Walker v. Uhler, 185 A.D.3d 1363, 1363-1364, 129 N.Y.S.3d 197 [3d Dept. 2020]). After the superintendent denied petitioner's grievance appeal, petitioner was required to appeal that denial to the Central Office Review Committee (CORC) (see 7 NYCRR 701.5 [d]; Matter of Jackson v. Administration of Bare Hill Corr. Facility, 139 A.D.3d 1191, 1192, 29 N.Y.S.3d 826 [3d Dept. 2016]).

In his answer, respondent submitted evidence that petitioner failed to appeal to CORC, which petitioner does not dispute (see generally Matter of Beaubrun v. Annucci, 144 A.D.3d 1309, 1310-1311, 40 N.Y.S.3d 295 [3d Dept. 2016]; Matter of Alvarez v. Fischer, 94 A.D.3d 1404, 1407, 942 N.Y.S.2d 711 [4th Dept. 2012]). Petitioner thus failed to exhaust his administrative remedies (see Jackson, 139 A.D.3d at 1192, 29 N.Y.S.3d 826; Alvarez, 94 A.D.3d at 1407, 942 N.Y.S.2d 711; see also Matter of Reyes v. Annucci, 142 A.D.3d 1395, 1396, 38 N.Y.S.3d 481 [4th Dept. 2016]), and he did not establish that any exceptions to the exhaustion requirement applied (see Bennefield, 122 A.D.3d at 1331, 995 N.Y.S.2d 435). Petitioner's “mere assertion that a constitutional right is involved will not excuse [his] failure to pursue established administrative procedures that can provide adequate relief” (Beaubrun, 144 A.D.3d at 1311, 40 N.Y.S.3d 295 [internal quotation marks omitted]; see also Walker, 185 A.D.3d at 1364, 129 N.Y.S.3d 197).