                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   520195
________________________________

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


Calendar Date:   August 10, 2015

Before:   Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ.

                             __________


     John Muggelberg, Sonyea, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered December 2, 2014 in Sullivan County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to, among other things, review a determination of the
Central Office Review Committee denying petitioner's grievance.

      Petitioner is an inmate at Livingston Correctional
Facility, which is located in what the Department of Corrections
and Community Supervision (hereinafter DOCCS) designates as the
Wende Hub. Relying on DOCCS Directive No. 4017 (IV) (c),
petitioner sought a transfer to another correctional facility
within that hub to accommodate visitation by his father, who has
limited mobility. After his offender rehabilitation coordinator
refused to submit his intra-hub transfer request finding that it
                              -2-                520195

was impermissible, he filed a grievance. The Central Office
Review Committee ultimately denied the grievance, finding that
neither the directive nor department policy permits inmate
requests for intra-hub facility transfers, and that the directive
permits such transfers only "for departmental or programmatic
needs" but not for "inmate preference." Petitioner thereafter
commenced this CPLR article 78 proceeding challenging the denial
of his grievance, seeking, among other relief, an order
compelling respondent to process his request to be transferred to
another facility in the Wende Hub. Supreme Court dismissed the
petition, prompting this appeal.

      We affirm. Respondent has broad discretion in deciding
whether to transfer inmates from one correctional facility to
another, and an inmate has no right to be housed at any
particular facility (see Correction Law § 23; Matter of Davis v
Fischer, 81 AD3d 1011, 1012 [2011], lv dismissed 17 NY3d 921
[2011]; Matter of Lugo v Goord, 49 AD3d 1114, 1115 [2008], lv
denied 10 NY3d 714 [2008]). Mandamus to compel does not lie to
compel the performance of a discretionary decision (see Matter of
Borrell v New York State Div. of Parole, 123 AD3d 1206, 1206-1207
[2014], lv denied 25 NY3d 901 [2015]; Matter of Swinton v Travis,
16 AD3d 851, 853 [2005]). Moreover, the interpretation of the
directive as not permitting intra-hub transfer requests by
inmates is rational and, therefore, the determination that his
request for such a transfer was not permissible was not arbitrary
and capricious (see Matter of Davis v Fischer, 76 AD3d 1152, 1152
[2010]; Matter of Binkley v New York State Dept. of Correctional
Servs., 64 AD3d 1063, 1063-1064 [2009], lv denied 13 NY3d 886
[2009]; Matter of Fullwood v Lamy, 28 AD3d 1016, 1016 [2006]).

      With regard to his claim that DOCCS' policy violates his
right to equal protection, petitioner has not shown that he was
treated differently than "similarly situated" inmates or that any
disparate treatment was based upon "impermissible considerations"
(Matter of State of New York v Myron P., 20 NY3d 206, 211 [2012]
[internal quotation marks and citation omitted]). Petitioner's
remaining claims are either unpreserved or lack merit.

     Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.
                        -3-                  520195

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
