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

836
CA 15-01091
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF EARL REYES, PETITIONER-APPELLANT,

                      V                              MEMORANDUM AND ORDER

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


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Wyoming County (Michael M. Mohun, A.J.), entered March 5, 2015 in a
proceeding pursuant to CPLR article 78. The judgment granted the
motion of respondent to dismiss the amended petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner, a prison inmate, commenced this CPLR
article 78 proceeding to challenge respondent’s handling of grievances
concerning his medical treatment, and he now appeals from a judgment
granting respondent’s motion to dismiss the amended petition for his
failure to exhaust administrative remedies. Supreme Court properly
dismissed the amended petition. Although petitioner contends that
grievances concerning denials of medical treatment filed by him on
April 25 and May 2, 2014 were improperly denied, “an affidavit from
the inmate grievance program supervisor confirms that petitioner never
filed formal grievances corresponding to those dates,” as required by
7 NYCRR 701.5 (a) (1) (Matter of Bookman v Fischer, 99 AD3d 1127,
1128; see Matter of Muniz v David, 16 AD3d 939, 939-940). “Thus,
petitioner ‘failed to exhaust the administrative remedies through the
available grievance procedures or establish any exceptions thereto[,]’
and dismissal of the [amended] petition was . . . proper on that
basis” (Muniz, 16 AD3d at 939-940).




Entered:    September 30, 2016                   Frances E. Cafarell
                                                 Clerk of the Court
