IN RE: Michael LOMBARD (2006)

In a proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of the Arthur Kill Correctional Facility dated May 4, 2004, which denied the petitioner's request for an eye examination at the New York Eye and Ear Infirmary, the appeal is from an order and judgment (one paper) of the Supreme Court, Richmond County (Giacobbe, J.), dated March 30, 2005, which granted the petition and denied the motion of the Superintendent of the Arthur Kill Correctional Facility to dismiss the petition.

ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, the determination is confirmed, the motion is granted, the petition is denied, and the proceeding is dismissed on the merits.

The petitioner commenced this proceeding to compel the appellant to transport him for an eye examination at the New York Eye and Ear Infirmary.   The appellant moved to dismiss the proceeding, inter alia, on the ground that the requested relief was not medically indicated.   The Supreme Court granted the petition and denied the motion.   We reverse.

The record indicates that the relief requested in the petition was not medically indicated.   Accordingly, the appellant's determination was not unreasonable or without a basis in law (see Matter of Ehlinger v. DeBuono, 249 A.D.2d 303, 670 N.Y.S.2d 357).   Moreover, the petitioner failed to demonstrate that the appellant acted in a manner demonstrating a deliberate indifference to the petitioner's serious medical needs (see Matter of Kelley v. Coughlin, 221 A.D.2d 532, 634 N.Y.S.2d 394;  Matter of De Flumer v. Dalsheim, 122 A.D.2d 872, 505 N.Y.S.2d 919).

Accordingly, the proceeding should have been dismissed.