        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1179
TP 14-00599
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF ADAM BENNEFIELD, PETITIONER,

                    V                             MEMORANDUM AND ORDER

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


ADAM BENNEFIELD, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Wyoming County [Michael M.
Mohun, A.J.], entered March 21, 2014) to review determinations of
respondent. Respondent denied grievances filed by petitioner and
determined after a tier II hearing that petitioner had violated
various inmate rules.

     It is hereby ORDERED that said petition is unanimously dismissed
without costs.

     Memorandum: Petitioner commenced this proceeding seeking to
annul a disciplinary determination that he violated certain inmate
rules and challenging the determinations denying two unrelated
grievances. After the proceeding was transferred to this Court
pursuant to CPLR 7804 (g), respondent issued an administrative order
reversing the disciplinary determination. Respondent directed that
all references to the disciplinary proceeding be expunged and that
petitioner be refunded a $5 hearing surcharge.

     As a preliminary matter, we note that “Supreme Court erred in
transferring that part of the proceeding related to the . . .
grievances to this Court inasmuch as any determinations with respect
to those grievances were not made as a result of a hearing held . . .
pursuant to direction by law” (Matter of Alvarez v Fischer, 94 AD3d
1404, 1407 [internal quotation marks omitted]). We nevertheless
“address the contentions with respect thereto in the interest of
judicial economy” (id.).

     We agree with respondent that the petition must be dismissed as
moot to the extent that it concerns the expunged disciplinary
                                 -2-                          1179
                                                         TP 14-00599

determination (see Matter of Silva v Walker, 245 AD2d 1115, 1115;
Matter of Free v Coombe, 234 AD2d 996, 996). Although petitioner
seeks monetary damages related to the disciplinary proceeding, his
claims for monetary damages “must be asserted in the Court of Claims,
not within a CPLR article 78 proceeding” (Matter of Taylor v Kennedy,
159 AD2d 827, 827). Contrary to petitioner’s contention, damages for
loss of privileges and confiscated property, unlike reimbursement for
hearing surcharges, are consequential damages and are not “incidental
to the primary relief sought by petitioner” (Matter of Hodges v Jones,
195 AD2d 647, 648; see CPLR 7806; Matter of Loftin v New York City
Dept. of Social Servs., 267 AD2d 78, 78, lv dismissed 95 NY2d 897,
rearg denied 96 NY2d 755; cf. Matter of Campbell v Hollins, 249 AD2d
994, 995; see generally Matter of Gross v Perales, 72 NY2d 231, 237,
rearg denied 72 NY2d 1042).

     To the extent that petitioner, in his CPLR article 78 petition,
sought to prevent the staff at Attica Correctional Facility from
retaliating against him, we note that petitioner has since been
transferred to a different facility and is no longer subject to the
authority of the staff at Attica. Thus, he is no longer aggrieved
with respect to that issue, and we therefore further dismiss that part
of the petition as moot (see Matter of McKenna v Goord, 245 AD2d 1074,
1075, lv denied 91 NY2d 812; see also Matter of Abreu v Bellamy, 81
AD3d 1004, 1004-1005; Matter of Kalwasinski v Fischer, 68 AD3d 1722,
1723).

     With respect to petitioner’s challenges to the grievance
determinations, we conclude that petitioner failed to exhaust his
administrative remedies with respect to those determinations, and we
therefore further dismiss the remainder of the petition. “A
petitioner must exhaust all administrative remedies before seeking
judicial review unless an agency’s action is challenged as either
unconstitutional or wholly beyond its grant of power . . . or when
resort to an administrative remedy would be futile . . . or when its
pursuit would cause irreparable injury” (Matter of Ross v Ricks, 268
AD2d 925, 925-926 [internal quotation marks omitted]). Petitioner has
failed “to establish that any of the exceptions to the exhaustion
doctrine applied” (id. at 926; see Matter of Abdullah v Girdich, 297
AD2d 844, 845), and this Court lacks the discretionary authority to
address his contentions (see Matter of Allen v Goord, 4 AD3d 635, 636-
637; see generally Matter of Nelson v Coughlin, 188 AD2d 1071, 1071,
appeal dismissed 81 NY2d 834).




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
