State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 519308 

________________________________

In the Matter of ROMAN 

SANTIAGO,

Appellant,

v MEMORANDUM AND ORDER

MAUREEN E. BOLL, as Deputy

Commissioner and Counsel 

of the Department of

Corrections and Community

Supervision,

Respondent,

et al.,

Respondent.

________________________________

Calendar Date: June 2, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Roman Santiago, Ossining, appellant pro se.

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

Treasure of counsel), for Maureen E. Boll, respondent.

__________

Lynch, J.

Appeal from a judgment of the Supreme Court (O'Connor, J.),

entered June 4, 2014 in Albany County, which, in a proceeding

pursuant to CPLR article 78, granted respondents' motions to

dismiss the petition.

Petitioner, an inmate, is designated a central monitoring

case by respondent Department of Corrections and Community

Supervision (hereinafter DOCCS). He appealed the designation to
-2- 519308 

DOCCS' Inspector General. The Inspector General sustained the

designation and petitioner commenced this CPLR article 78

proceeding, challenging the designation and seeking an order

directing respondent New York City Department of Probation to

amend his presentence investigation report. Supreme Court

granted respondents' motions to dismiss the petition, finding,

among other things, that petitioner was precluded from

challenging allegedly erroneous information in his presentence

investigation report that he argues DOCCS relied on in making the

designation. Petitioner appeals, challenging in his brief only

Supreme Court's dismissal of the petition that challenged his

designation as a central monitoring case.

We affirm on a different ground than that expressed by

Supreme Court. "[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 remedies

would be futile or would cause the petitioner irreparable harm"

(Matter of Abdullah v Girdich, 297 AD2d 844, 845 [2002]; accord

Matter of Georgiou v Daniel, 21 AD3d 1230, 1231 [2005]). 

Pursuant to DOCCS Directive No. 701, an inmate may challenge a

central monitoring case designation at any time during his or her

incarceration by first appealing to DOCCS' Inspector General and,

if unsuccessful, appealing that determination to DOCCS' Counsel. 

Here, an affidavit from a representative of the Counsel's office

states that a search of that office's records revealed that no

appeal had been filed regarding the Inspector General's

determination of petitioner's initial appeal. Moreover, even if,

as petitioner contends, an appeal had been filed with the

Counsel's office, this proceeding was still prematurely

commenced, as no final determination has been issued by the

Counsel's office in connection to the appeal (see Matter of Kelly

v Selsky, 51 AD3d 1298 [2008]). Accordingly, that part of this

proceeding challenging DOCCS designation of him as a central

monitoring case should have been dismissed for petitioner's

failure to exhaust his administrative remedies (see Matter of

Valvano v Jones, 122 AD2d 336 [1986]).

Peters, P.J., Lahtinen and Garry, JJ., concur.
-3- 519308 

ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court