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Miller v. Croce

Appellate Division of the Supreme Court of New York, Third Department
Jan 10, 2002
290 A.D.2d 662 (N.Y. App. Div. 2002)

Opinion

87192

January 10, 2002.

Appeal from a judgment of the Supreme Court (Dowd, J.), entered April 5, 2000 in Chenango County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition for failure to exhaust administrative remedies.

Donahue A. Miller, Moravia, appellant pro se.

Richard W. Breslin, County Attorney, Norwich, for Sheriff Thomas Loughren and another, respondents.

Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.


MEMORANDUM AND ORDER


While incarcerated at the Chenango County Jail, petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to permit inmates to have telephone access at 8:10 A.M. in accordance with a "daily inmate schedule" maintained by the jail. According to petitioner, on January 10, 2000, at approximately 8:30 A.M., his request for telephone access to call his attorney was denied. In opposition to the petition, the County respondents submitted the affidavit of a Lieutenant in the Chenango County Sheriff's Department stating, inter alia, that while inmate telephones are ordinarily turned on at the designated time in the schedule, those times are subject to change when necessary for the safety, security and good order of the jail. The County respondents further argue, as an affirmative defense, petitioner's failure to utilize appropriate inmate grievance procedures before commencing the instant proceeding. Supreme Court dismissed the petition finding that petitioner failed to exhaust his administrative remedies resulting in this appeal.

We affirm. Petitioner's claim that he was denied meaningful telephone access in accordance with the daily schedule should have initially been pursued through the inmate grievance procedure. It is clear that a petitioner with a grievance against an agency must first "exhaust all available administrative channels before seeking relief in a judicial proceeding pursuant to CPLR article 78" (Matter of Beyah v. Scully, 143 A.D.2d 903, 903; see, Matter of Cliff v. Russell, 264 A.D.2d 892, 893). While there are exceptions to this exhaustion doctrine, petitioner has failed to establish that any of the exceptions are applicable here (see, Matter of Ross v. Ricks, 268 A.D.2d 925).

The remaining issues raised by petitioner are either lacking in merit or rendered academic by resolution of the foregoing issue.

Mercure, Crew III, Peters and Spain, JJ., concur.

ORDERED that the judgment is affirmed, without costs.


Summaries of

Miller v. Croce

Appellate Division of the Supreme Court of New York, Third Department
Jan 10, 2002
290 A.D.2d 662 (N.Y. App. Div. 2002)
Case details for

Miller v. Croce

Case Details

Full title:IN THE MATTER OF DONAHUE A. MILLER, Appellant, v. ALAN CROCE, AS CHAIR OF…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 10, 2002

Citations

290 A.D.2d 662 (N.Y. App. Div. 2002)
736 N.Y.S.2d 176

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