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 61⁄2-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