                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   522122
________________________________

In the Matter of KEN SMITH,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

DEPARTMENT OF CORRECTIONS AND
   COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Aarons, JJ.

                             __________


     Ken Smith, Albion, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Young, J.),
entered May 6, 2015 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted respondent's motion to
dismiss the petition.

      Petitioner commenced this CPLR article 78 proceeding
challenging a determination that removed him from a sex offender
treatment program due to poor program performance. Respondent
moved to dismiss the petition for failure to exhaust
administrative remedies. Supreme Court granted the motion and
this appeal ensued.

      Petitioner was required to file a grievance addressing his
removal from the treatment program (see Matter of Mascorro v
Annucci, 123 AD3d 1268, 1268 [2014]; Matter of Hawes v Fischer,
119 AD3d 1304, 1305 [2014]). The grievance filed by petitioner
                              -2-                  522122

in 2013 regarding certain claims cannot be considered a grievance
challenging his removal from the treatment program, as that
grievance was filed prior to petitioner being informed, in
January 2014, of his removal from the program. Further, although
petitioner submitted a letter of complaint to the coordinator of
the treatment program, that letter does not constitute a
grievance (see 7 NYCRR 701.2 [a]), and an affidavit from the
assistant director of the inmate grievance program confirms that
no formal grievance was filed by petitioner with regard to his
removal from the treatment program. As petitioner did not pursue
proper grievance procedures or establish any exception thereto,
Supreme Court appropriately dismissed the petition based upon
petitioner's failure to exhaust his administrative remedies (see
Matter of Jackson v Administration of Bare Hill Corr. Facility,
139 AD3d 1191, 1192 [2016]; Matter of Mascorro v Annucci, 123
AD3d at 1268-1269; Matter of Hawes v Fischer, 119 AD3d at 1305;
Matter of Torres v Fischer, 73 AD3d 1355, 1356 [2010]; Matter of
Muniz v David, 16 AD3d 939, 939-940 [2005]). Finally, to the
extent that petitioner argues that Supreme Court failed to
properly consider his reply to respondent's motion to dismiss, we
note that the information contained in the reply was also
included in the petition. The petition was considered by the
court, and the information did not negate the fact that
petitioner failed to file a grievance challenging his removal
from the treatment program.

     Peters, P.J., Garry, Rose, Devine and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
