WILSON v. GOORD (2000)

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

Matter of Dwayne WILSON, Petitioner-Respondent, v. Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, and Brion Travis, Chairman, New York State Division of Parole, Respondents-Appellants.

Decided: February 16, 2000

PRESENT: GREEN, A.P.J., HAYES, PIGOTT, JR., and BALIO, JJ.

Marcus J. Mastracco, Albany, for respondents-appellants.

Supreme Court erred in denying respondents' motion to dismiss the petition. Petitioner's administrative appeal was pending at the time petitioner commenced this CPLR article 78 proceeding. “[J]udicial review of any alleged errors in the parole process is precluded prior to the exhaustion of * * * administrative remedies” (Matter of La Bounty v. Russi, 208 A.D.2d 1071, 617 N.Y.S.2d 651, appeal dismissed and lv. denied 85 N.Y.2d 889, 626 N.Y.S.2d 753, 650 N.E.2d 412; see also, Matter of Hough v. New York State Bd. of Parole, 235 A.D.2d 862, 652 N.Y.S.2d 1016, lv. dismissed 90 N.Y.2d 884, 661 N.Y.S.2d 826, 684 N.E.2d 276). The court further erred in granting the relief sought in the petition without affording respondents an opportunity to file an answer (see, Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs., 63 N.Y.2d 100, 103-104, 480 N.Y.S.2d 190, 469 N.E.2d 511).

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

MEMORANDUM:

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