                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   519847
________________________________

In the Matter of DANIEL
   OLIVEIRA,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

HAROLD GRAHAM, as Superintendent
   of Auburn Correctional
   Facility, et al.,
                    Respondents.
________________________________


Calendar Date:   September 11, 2015

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

                             __________


     Daniel Oliveira, Auburn, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondents.

                             __________


Lynch, J.

      Appeals (1) from a judgment of the Supreme Court (McGrath,
J.), entered July 17, 2014 in Albany County, which partially
granted petitioner's application, in a proceeding pursuant to
CPLR article 78, by, among other things, vacating a determination
of the Central Office Review Committee and directing it to issue
a decision on petitioner's grievance, and (2) from a judgment of
said court, entered November 12, 2014 in Albany County, which
denied petitioner's motion to renew.

      Petitioner, an inmate, worked as an occupational industry
clerk in the Corcraft Industry Program at Auburn Correctional
facility in Cayuga County. After condoms were found in an office
                              -2-                519847

near petitioner's work area, he was terminated from his
assignment for security reasons. As a result, petitioner filed a
grievance alleging discrimination and harassment based upon his
perceived sexual orientation. The grievance was referred to
respondent Superintendent of Auburn Correctional Facility, who
advised petitioner that the matter had been referred to the
Inspector General's Office of the Department of Corrections and
Community Supervision for further investigation. Petitioner
appealed this decision to the Central Office Review Committee
(hereinafter CORC).

      While the appeal was pending, petitioner commenced this
CPLR article 78 proceeding seeking to compel the Superintendent
to restore him to his assignment in the occupational industry
program and to direct respondent Inspector General to complete
the investigation and file a written report. Subsequently, CORC
issued a determination upholding the Superintendent's
determination and noting that any further action would await the
outcome of the Inspector General's investigation. Respondents
served an answer to the petition, attaching both a copy of CORC's
determination and the Inspector General's report, the latter of
which was submitted in camera. In July 2014, Supreme Court
granted the petition to the extent of vacating CORC's
determination and remanded the matter to CORC to make a ruling on
petitioner's grievance in view of the completion of the Inspector
General's investigation.1

      Thereafter, CORC issued an amended determination denying
petitioner's grievance and noting that, based upon the Inspector
General's investigation, petitioner was properly removed from his
assignment for security reasons. Petitioner made an application
– designated a "motion to renew" – to challenge the amended
determination and Supreme Court denied it by judgment entered in




    1
        Supreme Court concluded that the portion of the petition
seeking to compel the Inspector General to file a written report
of the results of the investigation was moot given that the
report had already been issued.
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November 2014.   Petitioner now appeals from both judgments.2

      Initially, respondents concede, among other things, that
the proper procedure was not followed in processing petitioner's
grievance. In cases such as this, where a grievance contains
allegations of discrimination based upon sexual orientation, the
governing regulations require that the Office of Diversity
Management perform an investigation and and be present when such
a grievance appeal is reviewed by CORC (see 7 NYCRR 701.9 [d]
[h]). These requirements were not met.

      Equally significant, respondents further concede that the
Inspector General's investigation was initiated before
petitioner's grievance was filed and did not address the
grievance or the allegations of discrimination based upon sexual
orientation. Indeed, a review of the Inspector General's report
discloses that its investigation centered upon identifying the
owner of the condoms. Furthermore, the report concluded that
there was no evidence to substantiate a finding that the condoms
belonged to petitioner. In view of this, and absent any evidence
to establish that petitioner's removal from the program was
necessary due to security concerns, we conclude that CORC's
amended determination denying petitioner's grievance was
arbitrary, capricious and without a rational basis (see e.g.
Matter of Santiago v Fischer, 105 AD3d 1223, 1223 [2013]; Matter
of James v Fischer, 102 AD3d 1019, 1020 [2013]). Accordingly,


    2
        Petitioner's appeal from Supreme Court's July 2014
judgment partially granting the petition is now moot in light of
CORC's subsequent amended determination denying petitioner's
grievance and petitioner's appeal of Supreme Court's November
2014 judgment relating thereto.

     Insofar as petitioner's motion to renew was the subject of
Supreme Court's November 2014 judgment, we find the circumstances
appropriate to exercise our interest of justice jurisdiction and
treat petitioner's motion to renew as an application to review
the merits of CORC's amended determination (see CPLR 103 [c];
Matter of Tara V. v County of Otsego, 12 AD3d 984, 986 n 2
[2004]).
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the amended determination must be annulled and petitioner's
grievance granted, including the relief requested therein,
specifically petitioner's reinstatement to his prison job
assignment.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



      ORDERED that the appeal from the judgment entered July 17,
2014 is dismissed, as moot, without costs.

      ORDERED that the judgment entered November 12, 2014 is
reversed, on the law, without costs, amended determination of the
Central Office Review Committee annulled and petitioner's
grievance granted, including the relief requested therein.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
