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

IN RE: Robert McKEOWN, Appellant, v. Glenn GOORD, as Commissioner of the New York State Department of Correctional Services, Respondent.

Decided: October 28, 1999

Before:  MIKOLL, J.P., MERCURE, SPAIN, CARPINELLO and MUGGLIN, JJ. Robert McKeown, Collins, appellant in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered November 20, 1998 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request for merit time allowance.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging respondent's determination finding that petitioner was not eligible for merit time allowance (see, Correction Law § 803[3] ) due to his “refusal to participate in programs/treatment recommended by department staff”.   Supreme Court dismissed the petition on the ground that petitioner failed to exhaust his administrative remedies in that he did not file a grievance with respect to the denial of merit time.   Petitioner appeals.

Respondent concedes, and we agree, that inasmuch as the record indicates that petitioner had inquired into the review process and was informed that there was no grievance procedure available, it was error to dismiss the petition for failure to exhaust administrative remedies.   Accordingly, the matter should be remitted to Supreme Court to address the merits.

ORDERED that the judgment is reversed, on the facts, without costs, petition reinstated and matter remitted to the Supreme Court for further proceedings not inconsistent with this court's decision.


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