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PETITIONER WAITED EIGHT MONTHS WITHOUT RECEIVING A DECISION ON THE ADMINISTRATIVE APPEAL OF THE DENIAL OF HIS GRIEVANCE BEFORE FILING AN ARTICLE 78 CONTESTING THE DENIAL; PETITIONER WAS ENTITED TO THE “FUTILITY EXCEPTION” TO THE REQUIREMENT THAT HE EXHAUST ALL ADMINISTRATIVE REMEDIES BEFORE TURNING TO THE COURTS (THIRD DEPT).

The Third Department determined petitioner-inmate was entitled to the “futility exception” to the requirement that administrative remedies be exhausted before bringing an Article 78 proceeding to contest the administrative ruling. Petitioner brought a grievance alleging the Department of Corrections and Community Supervision (DOCCS) should not have reduced his pay for work in the mess hall because of his refusal to participate in certain prison programs. After the superintendent denied relief petitioner appealed to the Central Office Review Committee (CORC) but eight months passed without a decision. Then petitioner brought the Article 78:

… [P]etitioner filed his administrative appeal with CORC on December 12, 2018 and commenced this proceeding on August 19, 2019. He waited more than eight months without having received a decision — which is seven months after CORC’s 30-day limit had expired — before he commenced this proceeding. To the extent that the regulations are unclear regarding whether CORC’s failure to decide an appeal within 30 days constitutes a constructive denial, a grievant is placed in a catch-22 situation — if he or she files a CPLR article 78 proceeding before receiving a decision from CORC, DOCCS may seek dismissal based on the defense of failure to exhaust administrative remedies, but, if the grievant does not commence a court proceeding within four months after the 30-day decision period, he or she risks the possibility of DOCCS seeking dismissal based on a statute of limitations defense … . This untenable position, which arises from the confluence of CORC’s failure to comply with the regulation’s time frame for deciding administrative appeals and the lack of clarity in a different DOCCS regulation, creates substantial prejudice to a grievant such as petitioner … . Under the circumstances, we find that exhaustion should be excused based on the futility exception. Matter of McMillian v Krygier, 2021 NY Slip Op 04638, Third Dept 8-5-21

 

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