                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   519048
________________________________

In the Matter of MANUEL NUNEZ
                    Appellant,
      v                                     MEMORANDUM AND ORDER

PAMELA L. WHITE, as
   Superintendent of Industry
   at Clinton Correctional
   Facility, et al.,
                    Respondents.
________________________________


Calendar Date:   October 20, 2015

Before:   Peters, P.J., Lahtinen, Garry and Clark, JJ.

                             __________


     Manuel Nunez, Dannemora, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondents.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Ellis, J.),
entered May 13, 2014 in Clinton County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to, among other things, review a determination of the
Central Office Review Committee partially denying petitioner's
grievance.

      Petitioner, a prison inmate, works in the Clinton County
Correctional Facility tailor shop. In December 2012, petitioner
filed a grievance containing various complaints about conditions
in the tailor shop. Relevant here, petitioner alleged that there
was an unwritten policy under which no tailor shop supervisor was
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to rate an inmate worker as "excellent" in every category on
performance evaluations. He further grieved that there was a
lack of safety guards on the sewing machine needles and that all
of the seat cushions had been removed from the tailor shop
requiring inmates to sit on hard chairs all day. Following a
hearing before the Inmate Grievance Resolution Committee, the
Superintendent of the facility and then the Central Office Review
Committee (hereinafter CORC) denied, in relevant part,
petitioner's grievance, concluding that there was no
institutional interference with his evaluations, that safety
guards were in place on all sewing machines and that a new
procedure had been put in place whereby petitioner could obtain a
seat cushion. Thereafter, petitioner commenced this CPLR article
78 proceeding to challenge CORC's determination. Finding that
petitioner failed to administratively exhaust his challenge to
the newly created procedure to obtain a seat cushion and that
CORC's determination was rational as there was nothing in the
record to substantiate his claims regarding the unwritten policy
and lack of safety guards, Supreme Court dismissed the petition,
prompting this appeal.

      We modify. Judicial review of the denial of an inmate
grievance is limited to whether such a determination was
arbitrary or capricious, without a rational basis or affected by
an error of law (see Matter of Nunez v Central Off. Review Comm.,
126 AD3d 1248, 1249 [2015], lv denied 25 NY3d 911 [2015]; Matter
of Shoga v Annucci, 122 AD3d 1180, 1180 [2014]; Matter of
Hutchinson v Fischer, 112 AD3d 1245, 1245 [2013], lv denied 23
NY3d 903 [2014]). If "the determination is supported by a
rational basis, [this Court] must sustain the determination even
if [we] concludes that it would have reached a different result
than the one reached by the agency" (Matter of Wooley v New York
State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]
[internal quotation marks and citations omitted]). Here, we find
no basis in the record to suggest that CORC's determination was
irrational insofar as it found that there was no policy,
unwritten or otherwise, to deny accurate performance on inmate
evaluations in the tailor shop or that there was an outstanding
safety problem with the lack of guards on the sewing machines.
CORC rationally relied upon the Superintendent's representation
that she reminded her staff that evaluations should be completed
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in accordance with the newly developed evaluation system
requiring supporting reasons for the ratings given to each
inmate, and nothing in the written policy prevents inmates, who
meet the qualifying criteria, from receiving all "excellent"
ratings in their performance evaluations. CORC's determination
relative to the sewing machines was also rational insofar as the
safety features in the tailor shop vary; some machines have
finger guards while other machines may be used without finger
guards. Inmates are also instructed not to work on any machine
that is unsafe or that lacks a guard.

      With regard to Supreme Court's finding that petitioner
failed to administratively exhaust his challenge to the procedure
used to obtain a seat cushion, respondents join petitioner's
request for remittal of this matter to CORC to adjudicate this
portion of his grievance. Although the cushion-issue procedure
was implemented after petitioner filed his grievance, he appears
to have orally raised the issue at the hearing before the Inmate
Grievance Resolution Committee, which agreed with petitioner that
the new procedure was in certain respects "vague," and again in
both his written appeal statement to the Superintendent and to
CORC (see 7 NYCRR 701.5 [c], [d]). However, neither the
Superintendent nor CORC addressed petitioner's challenge to the
vagueness of the cushion-issue procedure, and we therefore agree
with the parties that this matter must be remitted to CORC so
that it can adjudicate this aspect of his grievance in the first
instance (see Matter of Santiago v Fischer, 105 AD3d 1223, 1223-
1224 [2013]; Matter of Eastwood v Fischer, 80 AD3d 1122, 1123
[2011]).

      Petitioner's remaining contentions have been reviewed and
found to be without merit.

     Peters, P.J., Lahtinen and Garry, JJ., concur.
                              -4-                  519048

      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as dismissed that part of the
petition seeking review of petitioner's grievance regarding the
cushion-issue procedure; matter remitted to the Central Office
Review Committee for further proceedings not inconsistent with
this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
