                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    518346
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In the Matter of ROBERT
   CUMBERLAND,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

COMMISSIONER OF CORRECTIONS
   AND COMMUNITY SUPERVISION,
                    Respondent.
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Calendar Date:   June 8, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


     Robert Cumberland, Stormville, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Zwack, J.),
entered January 23, 2014 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to compel respondent to install televisions and/or
radio jacks at Greenhaven Correctional Facility.

      Petitioner, an inmate at Greenhaven Correctional Facility,
submitted a grievance requesting that televisions and/or radio
jacks be installed in each cell. Following the Central Office
Review Committee's denial of his grievance, petitioner commenced
this CPLR article 78 proceeding seeking to compel respondent to
install such. In its answer, respondent alleged that petitioner
failed to state a cause of action. Supreme Court agreed and,
accordingly, dismissed the petition. This appeal ensued.
                              -2-                  518346

      We affirm. In a CPLR article 78 proceeding in the nature
of mandamus to compel, "'the petitioner has an initial burden of
presenting factual allegations of an evidentiary nature or other
competent evidence tending to establish his or her entitlement to
the requested relief'" (Matter of Henriquez v New York State
Dept. of Correctional Servs., 61 AD3d 1191, 1192 [2009], quoting
Matter of Rodriguez v Goord, 260 AD2d 736, 736-737 [1999], lv
denied 93 NY2d 818 [1999]). Here, the petition alleges that,
upon information and belief, all other similar correctional
facilities have televisions and radio jacks in each cell; thus,
respondent is required to install similar equipment at
Greenhaven. We agree with Supreme Court that these assertions
are not factual allegations of an evidentiary nature that tend to
establish that petitioner is entitled to the relief that he seeks
and, therefore, the petition was properly dismissed (see Matter
of Pettus v Department of Correctional Servs., 72 AD3d 1375, 1376
[2010]). Finally, to the extent that petitioner sought
discovery, Supreme Court providently exercised its discretion in
denying his request (see CPLR 408; Matter of Lally v Johnson City
Cent. Sch. Dist., 105 AD3d 1129, 1132 [2013]). Petitioner's
remaining contentions have been examined and found to be without
merit.

     Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
