IN RE: Robert DAVIS

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

IN RE: Robert DAVIS, Appellant, v. John W. BURGE, as Superintendent of Elmira Correctional Facility, Respondent.

Decided: October 30, 2008

Before:  MERCURE, J.P., SPAIN, CARPINELLO, MALONE JR. and STEIN, JJ. Robert Davis, Elmira, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Tait, J.), entered October 3, 2006 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying petitioner's grievance and a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging (1) a determination of the Central Office Review Committee which denied his grievance alleging that he had been verbally harassed by a correction officer and (2) a tier II disciplinary determination of respondent which found him guilty of being out of place after he was observed in the G block area instead of the hospital area where he was assigned to work.   Supreme Court dismissed the petition and this appeal ensued.

 We affirm.   The record reveals that a complete investigation was conducted of the allegations set forth in petitioner's grievance, including interviewing witnesses, and it was determined that petitioner's claims were unsubstantiated.   Under these circumstances, we cannot conclude that the denial of his grievance was arbitrary and capricious, irrational, or otherwise affected by an error of law (see Matter of Dallio v. Goord, 15 A.D.3d 803, 804, 790 N.Y.S.2d 614 [2005], lv. denied 5 N.Y.3d 709, 803 N.Y.S.2d 29, 836 N.E.2d 1152 [2005];  Matter of Harty v. Goord, 3 A.D.3d 701, 702, 769 N.Y.S.2d 915 [2004] ).   As for petitioner's assertion that the misbehavior report was issued in retaliation for his filing of the grievance, that claim is unpreserved for our review by virtue of petitioner's failure to raise it at his disciplinary hearing or on administrative appeal (see Matter of James v. Goord, 38 A.D.3d 1074, 1074, 832 N.Y.S.2d 117 [2007] ).   Courts reviewing administrative determinations have no authority to review claims raised for the first time in a special proceeding (see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2007];  Matter of World Buddhist Ch'An Jing Ctr., Inc. v. Schoeberl, 45 A.D.3d 947, 951, 846 N.Y.S.2d 392 [2007] ).

Petitioner's remaining contentions have been considered and found to be unavailing.

ORDERED that the judgment is affirmed, without costs.

SPAIN, J.

MERCURE, J.P., CARPINELLO, MALONE JR. and STEIN, JJ., concur.

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