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
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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.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court