State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 15, 2016 522730 

________________________________

In the Matter of RUDOLPH 

TURNER,

Appellant,

v

MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections 

and Community Supervision,

Respondent.

________________________________

Calendar Date: October 25, 2016

Before: Lynch, J.P., Devine, Clark, Mulvey and Aarons, JJ.

__________

Rudolph Turner, Newburgh, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Julie M.

Sheridan of counsel), for respondent.

__________

Appeal from a judgment of the Supreme Court (Fisher, J.),

entered January 28, 2016 in Albany County, which, in a proceeding

pursuant to CPLR article 78, among other things, granted

respondent's motion to dismiss the petition.

In March 2015, during a tier III prison disciplinary

hearing, petitioner pleaded guilty to violating six prison

disciplinary rules stemming from his misconduct while

participating in a prison work release program. The Hearing

Officer issued a guilty disposition and imposed a penalty of 240

days in the special housing unit with a commensurate loss of

privileges and a loss of good time. Upon review, the facility

superintendent reduced petitioner's time in the special housing

unit to 104 days and his loss of privileges to 120 days. In
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September 2015, petitioner commenced this CPLR article 78

petition challenging the penalty as excessive. In his petition,

petitioner alleged that he had filed an administrative appeal of

the disciplinary determination on March 23, 20151 for which he

had not yet received a final determination. Prior to answering,

respondent moved to dismiss based upon, among other grounds,

petitioner's failure to exhaust all of his administrative

remedies, which motion petitioner opposed. Supreme Court granted

the motion, finding that, by commencing the proceeding while the

administrative appeal was pending, petitioner had failed to

exhaust administrative remedies. Petitioner appeals.

We affirm. On a motion to dismiss, the facts as alleged by

the petitioner are accepted as true (see Matter of Rodriguez v

Jacoby & Meyers, LLP, 126 AD3d 1183, 1185 [2015], lv denied 25

NY3d 912 [2015]; Moulton v State of New York, 114 AD3d 115, 119

[2013]). Here, by his own account, petitioner commenced this

CPLR article 78 proceeding after the disciplinary determination

was rendered, but before his pending administrative appeal had

been resolved. Accordingly, petitioner failed to exhaust all of

his available administrative remedies and this proceeding was,

consequently, premature (see Matter of Schenectady Nursing &

Rehabilitation Ctr., LLC v Shah, 124 AD3d 1023, 1024 [2015];

Matter of Connerton v Ryan, 86 AD3d 698, 699 [2011]). Petitioner

contends that this proceeding was not premature because 7 NYCRR

254.8 contemplates that a final determination will be rendered

"within 60 days of receipt of the [administrative] appeal." 

However, as we have previously recognized, "the 60-day time

period is directory, rather than mandatory" (Matter of Howard v

Prack, 137 AD3d 1360, 1360 [2016]; accord Matter of Goberdhan v

Goord, 7 AD3d 897, 898 [2004]). Moreover, petitioner has not

demonstrated any prejudice due to the delay (see Watergate II

Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). Thus,

1 While the petition states that the administrative appeal

was filed on March 23, 2014, this was an error that was corrected

in the proposed amended verified petition. Although Supreme

Court ultimately denied petitioner's motion to amend the

petition, it fully considered all of the allegations raised

therein.
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inasmuch as petitioner commenced this proceeding without first

exhausting his administrative remedies, Supreme Court properly

dismissed the petition (see Matter of Rodriguez v Fischer, 80

AD3d 920, 921 [2011]; Matter of West v McGinnis, 4 AD3d 654, 655

[2004]).

Lynch, J.P., Devine, Clark, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court