IN RE: ADAM BENNEFIELD (2014)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered March 21, 2014) to review determinations of respondent.   Respondent denied grievances filed by petitioner and determined after a tier II hearing that petitioner had violated various inmate rules.

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

As a preliminary matter, we note that “Supreme Court erred in transferring that part of the proceeding related to the ․ grievances to this Court inasmuch as any determinations with respect to those grievances were not made as a result of a hearing held ․ pursuant to direction by law” (Matter of Alvarez v. Fischer, 94 AD3d 1404, 1407 [internal quotation marks omitted] ).   We nevertheless “address the contentions with respect thereto in the interest of judicial economy” (id.).

We agree with respondent that the petition must be dismissed as moot to the extent that it concerns the expunged disciplinary determination (see Matter of Silva v. Walker, 245 A.D.2d 1115, 1115;  Matter of Free v. Coombe, 234 A.D.2d 996, 996).   Although petitioner seeks monetary damages related to the disciplinary proceeding, his claims for monetary damages “must be asserted in the Court of Claims, not within a CPLR article 78 proceeding” (Matter of Taylor v. Kennedy, 159 A.D.2d 827, 827).   Contrary to petitioner's contention, damages for loss of privileges and confiscated property, unlike reimbursement for hearing surcharges, are consequential damages and are not “incidental to the primary relief sought by petitioner” (Matter of Hodges v. Jones, 195 A.D.2d 647, 648;  see CPLR 7806;  Matter of Loftin v New York City Dept. of Social Servs., 267 A.D.2d 78, 78, lv dismissed 95 N.Y.2d 897, rearg. denied 96 N.Y.2d 755;  cf.  Matter of Campbell v. Hollins, 249 A.D.2d 994, 995;  see generally Matter of Gross v Perales, 72 N.Y.2d 231, 237, rearg. denied 72 N.Y.2d 1042).

To the extent that petitioner, in his CPLR article 78 petition, sought to prevent the staff at Attica Correctional Facility from retaliating against him, we note that petitioner has since been transferred to a different facility and is no longer subject to the authority of the staff at Attica.   Thus, he is no longer aggrieved with respect to that issue, and we therefore further dismiss that part of the petition as moot (see Matter of McKenna v. Goord, 245 A.D.2d 1074, 1075, lv denied 91 N.Y.2d 812;  see also Matter of Abreu v. Bellamy, 81 AD3d 1004, 1004–1005;  Matter of Kalwasinski v. Fischer, 68 AD3d 1722, 1723).

With respect to petitioner's challenges to the grievance determinations, we conclude that petitioner failed to exhaust his administrative remedies with respect to those determinations, and we therefore further dismiss the remainder of 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” (Matter of Ross v. Ricks, 268 A.D.2d 925, 925–926 [internal quotation marks omitted] ).   Petitioner has failed “to establish that any of the exceptions to the exhaustion doctrine applied” (id. at 926;  see Matter of Abdullah v. Girdich, 297 A.D.2d 844, 845), and this Court lacks the discretionary authority to address his contentions (see Matter of Allen v. Goord, 4 AD3d 635, 636–637;  see generally Matter of Nelson v Coughlin, 188 A.D.2d 1071, 1071, appeal dismissed 81 N.Y.2d 834).

Frances E. Cafarell

Clerk of the Court