IN RE: the Application of Rosemarie DESISTO (2022)

By order to show cause and petition filed on October 12, 2021, petitioner Rosemarie Desisto has moved pro se and pursuant to Article 78 of the CPLR for an order setting aside the indefinite suspension of her visitation privileges at the Shawangunk Correctional Facility by the respondent Anthony J. Annucci, Commissioner, Department of Corrections and Community Supervision (hereinafter DOCCS) on the basis that it is contrary to law and not supported by substantial evidence.

The respondent has cross moved for an order: (1) pursuant to CPLR 510 and 511 changing the place of trial; and (2) dismissing the proceeding pursuant to CPLR 3211 (a) (5), (7) and (8). The respondent withdrew that part of the motion seeking dismissal of the proceeding pursuant to CPLR 3211(a) (5) and (8).

BACKGROUND

The petition alleges the following salient facts. Petitioner is the spouse of an inmate presently incarcerated at Shawangunk Correctional Facility (hereinafter SCF) at Wallkill New York in Ulster County. On September 23, 2019, petitioner went to SCF to participate in the Family Reunion Program (FRP) with her husband, a program that they have been participating in for over ten years. Petitioner left all items that could be classified as contraband in her car, then walked toward the facility entrance gate for processing. With her consent, a dog controlled by DOCCS staff sniffed around her vehicle. The DOCCS advised the petitioner that the dog had detected something and asked for permission to search her car. Petitioner consented to the search. The search uncovered marijuana, Dextroamp and Oxycodone pills which petitioner admitted belonged to her. Petitioner went inside the facility and consented to a body search which yielded nothing. The DOCCS staff then contacted the State Police who then arrested the petitioner and charged her with two Class A misdemeanor counts of criminal possession of a controlled substance in the seventh degree. On September 26, 2019, the Superintendent of Shawangunk sent the petitioner a letter advising her that she was indefinitely suspended from visiting her husband based on the pills and marijuana found in her vehicle.

The two misdemeanors were disposed of by dismissing the charge for marijuana possession and a monetary fine on the pill possession charge. Petitioner filed an administrative appeal on November 22, 2019. The decision of the administrative appeal was an affirmance of the suspension.

LAW AND APPLICATION

For the reasons set forth below, the cross motion by respondent New York State Department of Corrections and Community Supervision (“DOCCS”) for an order pursuant to CPLR 510 and 511 directing a change in the location of trial and transferring the proceeding to the Supreme Court, Albany County, is granted. The application of petitioner for a judgment pursuant to CPLR Article 78, is stayed pending the change in venue.

On September 26, 2019, the Superintendent of Shawangunk sent the petitioner a letter advising her that he had indefinitely suspended her ability to visit her husband based on the pills and marijuana found in her vehicle. Petitioner appealed the suspension. On December 19, 2019, the respondent affirmed the decision of the superintendent. Petitioner filed a request for reconsideration which was denied. Petitioner then commenced the instant special proceeding.

Respondent had served petitioner, pursuant to CPLR 511 (a) and (b), with a written demand for a change of venue to the Supreme Court, Albany County. Plaintiff contends that Kings County was the proper venue based on the petitioner's residence in Kings County. Respondent then filed a cross motion to change venue, pursuant to CPLR 510 and 511.

A successful motion to change venue must show that the venue designated is improper and that the one sought is proper (Williams v Staten Island Univ. Hosp., 179 AD3d 869, 870 [2nd Dept 2020]). This instant matter is an Article 78 proceeding that must be venued in accordance with CPLR 506. CPLR 506 (b) governs venue in CPLR Article 78 proceedings. That subdivision provides, in pertinent part, as follows:

“A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located” (Vigilante v Dennison, 36 AD3d 620, 621—22 [2nd Dept 2027]).

Respondent avers that petitioner improperly designated Kings County as the place of venue. The act which gave rise to the official act of the suspension of petitioner's visitation was the bringing of controlled substances onto the grounds of the prison. That material act occurred at the prison site which is located in Ulster County. In this case, venue in Albany County is also proper because it is the county where the respondent has his principal office. Venue would also be proper in Ulster County because it is the county where the determination at issue was made, and where the events material to that determination took place. Kings County is improper because under CPLR 506, the residence of the petitioner is not a proper basis for venue.

This Court finds that venue does not lie in Kings County. The principal office of respondent is located in Albany County. Accordingly, venue properly lies in Albany County. Any additional arguments regarding venue have been considered and are rejected.

ORDERED that venue of this action is changed from this Court to Supreme Court, County of Albany, and upon service by the movant of a copy of this order with notice of entry and payment of appropriate fees, if any, the Clerk of this Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of Albany; and it is further,

ORDERED that the underlying special proceeding is stayed pending the change in venue.

IT IS FURTHER ORDERED that counsel for the respondent inform the petitioner of the time and locale of the next appearance in Albany County.

CONCLUSION

The cross motion by respondent for an order directing a change in the location of trial and transferring the proceeding to Albany County, is granted.

Francois A. Rivera, J.