                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   523000
________________________________

In the Matter of LYONEL
   BEAUBRUN,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 20, 2016

Before:   McCarthy, J.P., Lynch, Rose, Mulvey and Aarons, JJ.

                             __________


     Lyonel Beaubrun, Coxsackie, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Ryba, J.),
entered February 9, 2016 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted respondent's motion to
dismiss the petition.

      Petitioner is currently serving a 6½-year prison sentence.
Following a prison disciplinary hearing in January 2013, he was
found guilty of violating two prison disciplinary rules.
Petitioner was thereafter informed by his offender rehabilitation
coordinator that, as a result of his disciplinary infractions, he
was ineligible for a merit time allowance (see Correction Law
§ 803 [1] [d] [i]). Petitioner wrote letters objecting to the
determination of ineligibility to the facility superintendent,
who confirmed that his status was correct; he did not file a
grievance. Petitioner then commenced this CPLR article 78
                              -2-                523000

proceeding seeking to annul the determination of merit time
ineligibility. Supreme Court granted respondent's motion to
dismiss based upon petitioner's failure to exhaust administrative
remedies, and this appeal ensued.

      We affirm. It is well established that "[a] petitioner
must exhaust all his or her administrative remedies before
seeking judicial review unless he or she is challenging an
agency's action as unconstitutional or beyond its grant of power,
or if resort to the available administrative remedies would be
futile or would cause the petitioner irreparable harm" (Matter of
Santiago v Boll, 130 AD3d 1336, 1336 [2015] [internal quotation
marks, brackets and citation omitted]). Petitioner's challenge
in this proceeding is to the finding that, due to his
disciplinary history, he is ineligible for merit time. As
relevant here, an inmate is disqualified from receiving a merit
time allowance if he or she has committed "any serious
disciplinary infraction" (Correction Law § 803 [1] [d] [iv]; see
Matter of Hines v Fischer, 101 AD3d 1204, 1205 [2012]), which is
defined by the governing regulations promulgated by the
Department of Corrections and Community Supervision (hereinafter
DOCCS) (see 7 NYCRR 280.2 [b]). Given that petitioner's
challenge to the merit time determination concerns the
"application of a[] written . . . regulation . . . or rule of
[DOCCS]" (7 NYCRR 701.2 [a]), he was required to file a grievance
challenging that determination and to follow the grievance
procedures (see 7 NYCRR 701.5; Correction Law § 139; Matter of
Mascorro v Annucci, 123 AD3d 1268, 1268 [2014]; see e.g. Matter
of Hines v Fischer, 101 AD3d at 1205).

      In support of its motion to dismiss, respondent submitted
proof that a search of DOCCS's records disclosed no grievance
from petitioner on this issue, and petitioner submitted no proof
to the contrary. Petitioner's letters to his coordinator and to
the facility superintendent did not qualify as a grievance (see
Matter of Hawes v Fischer, 119 AD3d 1304, 1305 [2014]).
Moreover, petitioner failed to establish that any of the
exceptions to the exhaustion requirement are applicable, as his
"mere assertion that a constitutional right is involved will not
excuse [his] failure to pursue established administrative
procedures that can provide adequate relief" (Matter of Hyatt v
                              -3-                  523000

Annucci, 134 AD3d 1359, 1359-1360 [2015] [internal quotation
marks and citations omitted]; see Matter of Santiago v Boll, 130
AD3d at 1336). Thus, the petition was correctly dismissed due to
petitioner's failure to exhaust administrative remedies (see
Matter of Jackson v Administration of Bare Hill Corr. Facility,
139 AD3d 1191, 1192 [2016]; Matter of Hawes v Fischer, 119 AD3d
at 1305).

      McCarthy, J.P., Lynch, Rose, Mulvey and Aarons, JJ.,
concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
