IN RE: Danny RINCON (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Ceresia, J.), entered December 24, 2019 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, challenging respondent's administrative separation and transfer process.

Petitioner, a prison inmate, alleges that he is kept separate from numerous other inmates for reasons unknown to him.  As a result, petitioner alleges that he can only be confined in 14 correctional facilities across the state and that such restricts his rehabilitative programming opportunities.  In May 2019, petitioner commenced this CPLR article 78 proceeding claiming that his right to due process was violated by the lack of any mechanism to challenge the veracity of the information that led to his housing limitations.  Following joinder of issue, Supreme Court dismissed the petition.  Petitioner appeals.

Inasmuch as petitioner appears to be challenging a continuing policy rather than a specific determination, this CPLR article 78 proceeding should have been brought as a declaratory judgment action (see CPLR 103[c];  Matter of Zuckerman v. Board of Educ. of City School Dist. of City of N.Y., 44 N.Y.2d 336, 344, 405 N.Y.S.2d 652, 376 N.E.2d 1297 [1978];  Matter of Dorst v. Pataki, 167 Misc.2d 329, 332–333, 633 N.Y.S.2d 730 [1995], affd 228 A.D.2d 4, 654 N.Y.S.2d 198 [1997], affd 90 N.Y.2d 696, 665 N.Y.S.2d 65, 687 N.E.2d 1348 [1997]).  We therefore convert the matter to a declaratory judgment action (see CPLR 103[c];  People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 398, 521 N.Y.S.2d 657, 516 N.E.2d 194 [1987]) and, having done so, affirm.

Inmates have no constitutional “right to remain at a particular facility or any expectation that transfer will not occur without misconduct” (Matter of Henry v. Coughlin, 189 A.D.2d 1054, 1054, 592 N.Y.S.2d 903 [1993];  see Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 49 L.Ed.2d 466 [1976];  Meachum v. Fano, 427 U.S. 215, 224–225, 96 S.Ct. 2532, 49 L.Ed.2d 451 [1976];  Matter of Allegretti v. Coughlin, 81 A.D.2d 958, 958, 439 N.Y.S.2d 691 [1981], appeal dismissed 54 N.Y.2d 829, 443 N.Y.S.2d 1033, 427 N.E.2d 1193 [1981], lvs denied 55 N.Y.2d 601, 645, 446 N.Y.S.2d 1024, 265, 430 N.E.2d 1320, 1318 [1981]), nor are they entitled to challenge respondent's “almost unbridled authority to transfer [them] from one facility to another” absent unusual circumstances that are not present here (Matter of Johnson v. Ward, 64 A.D.2d 186, 188, 409 N.Y.S.2d 670 [1978];  see Correction Law § 23[1];  Montanye v. Haymes, 427 U.S. at 242–243, 96 S.Ct. 2543;  Matter of Henry v. Coughlin, 189 A.D.2d at 1054, 592 N.Y.S.2d 903;  Matter of Allegretti v. Coughlin, 81 A.D.2d at 958, 439 N.Y.S.2d 691).  It follows that petitioner is not entitled to know or dispute the reasons for his place of confinement as a matter of due process (compare Matter of Abdus–Samad v. Annucci, 141 A.D.3d 1101, 1102, 37 N.Y.S.3d 360 [2016], lv denied 28 N.Y.3d 909, 2016 WL 6839942 [2016];  Matter of Roe v. Selsky, 250 A.D.2d 935, 936, 673 N.Y.S.2d 238 [1998]).  Petitioner's remedy, should he be displeased with his housing, is to request a transfer to a preferred facility and seek review of a denial thereof (see e.g. Matter of Brooks v. Annucci, 149 A.D.3d 1434, 1435, 52 N.Y.S.3d 729 [2017];  Matter of Lugo v. Goord, 49 A.D.3d 1114, 1114–1115, 853 N.Y.S.2d 747 [2008], lv denied 10 N.Y.3d 714, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008]).

ORDERED that the judgment is modified, on the law, without costs, by converting the matter into a declaratory judgment action;  it is declared that petitioner is not entitled to know or dispute the reasons for his place of confinement as a matter of due process;  and, as so modified, affirmed.

Egan Jr., J.P., Mulvey, Devine, Pritzker and Reynolds Fitzgerald, JJ., concur.