                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   521163
________________________________

In the Matter of RALPH OYAGUE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

CLINTON CORRECTIONAL FACILITY,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


     Ralph Oyague, Huntington, appellant pro se.

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

                             __________


      Appeal from a judgment of the Supreme Court (Elliott III,
J.), entered March 31, 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 to
challenge a determination finding him guilty of violating certain
prison disciplinary rules. Respondent moved pursuant to CPLR
3211 (a) to dismiss the petition on the ground that petitioner
failed to exhaust his administrative remedies. Petitioner
opposed the motion by claiming that he submitted an
administrative appeal and never received a response. Supreme
Court granted the motion and dismissed the petition. Petitioner
now appeals.
      Petitioner properly served the notice of appeal upon
respondent (see CPLR 2103 [b] [2]), but the notice was apparently
never filed with the Albany County Clerk due to it having been
                              -2-                521163

mistakenly mailed to the Albany County Attorney (see CPLR 5515
[1]). In view of petitioner's pro se status and the absence of
any allegation that the failure to file prejudiced respondent, we
"grant an extension of time to enable [petitioner] to cure his
mistake and, in the interest of justice and judicial economy,
address the merits" (Carp v Marcus, 138 AD2d 775, 776 [1988]
[internal citation omitted]; see CPLR 5520 [a]; M Entertainment,
Inc. v Leydier, 13 NY3d 827, 828-829 [2009]; Gamble v Gamble, 23
AD2d 887, 887 [1965]).

      Upon the merits, we affirm. Respondent supported the
motion to dismiss with an affidavit from the director of the
office responsible for issuing final administrative
determinations regarding tier III disciplinary hearing appeals.
The director stated that he had reviewed the office's records and
that petitioner had not submitted an administrative appeal
regarding the determination at issue. The record accordingly
reflects that petitioner failed to take an administrative appeal
from the determination of guilt as required and, as a result,
Supreme Court properly concluded that petitioner had failed to
exhaust his administrative remedies and dismissed the petition
(see Matter of Tafari v Artus, 79 AD3d 1468, 1468-1469 [2010], lv
denied 16 NY3d 709 [2011]; Matter of Fulton v Futia, 71 AD3d
1356, 1356 [2010]).

     Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ., concur.
                              -3-                  521163

      ORDERED that the judgment is affirmed, without costs, upon
the condition that petitioner file the notice of appeal with the
Albany County Clerk within 30 days of the date of this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
