You are here: / / PETITIONER WAITED EIGHT MONTHS WITHOUT RECEIVING A DECISION ON THE ADMINISTRATIVE...

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

 

You might also like
THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING IMPEACHMENT MATERIAL PRIOR TO FILING A CERTIFICATE OF COMPLIANCE RENDERED THE CERTIFICATE OF COMPLIANCE AND THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (THIRD DEPT).
PLAINTIFF, WHO IS FIVE FOOT SEVEN, WAS INJURED WHEN A SIX FOOT HIGH STACK OF SCAFFOLDS PARTIALLY FELL ON HIM, THE HEIGHT DIFFERENTIAL WAS DEEMED DE MINIMUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION WAS PROPERLY GRANTED (THIRD DEPT).
AFTER SKIING ALL DAY AND RETURNING THE EQUIPMENT, CLAIMANT SLIPPED AND FELL ON ICE AND SNOW IN A PARKING LOT; THE ASSUMPTION OF THE RISK DOCTRINE DOES NOT APPLY; THE COURT NOTED THAT INADMISSIBLE HEARSAY, HERE AN INCIDENT REPORT, MAY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF IT DUPLICATES NON-HEARSAY (THIRD DEPT). ​
School District Attorney Was “Employee” Not “Independent Contractor”
DEFENDANT WAS CHARGED WITH PREDATORY SEXUAL ASSAULT AGAINST A CHILD, A CLASS A-II FELONY PUNISHABLE BY A MANDATORY MAXIMUM TERM OF LIFE IMPRISONMENT; PURSUANT TO CRIMINAL PROCEDURE LAW 195.10[1][B] DEFENDANT CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION (SCI) (THIRD DEPT). ​
SUPREME COURT PROPERLY ANNULLED THE ELECTION BOARD’S DESIGNATION OF AN EARLY VOTING POLLING PLACE BECAUSE THE BOARD DID NOT DEMONSTRATE THE LOCATION MET THE ELECTION LAW REQUIREMENTS MANDATING A LOCATION ACCESSIBLE TO CITY RESIDENTS (THIRD DEPT).
BUILDING AND HOME INSPECTORS WERE EMPLOYEES OF ENGINEERING FIRM.
THE INTOXICATED DEFENDANT’S DRIVING WHEN HE FLED FROM THE POLICE, WHILE RECKLESS, DID NOT DEMONSTRATE DEPRAVED INDIFFERENCE; DEPRAVED INDIFFERENCE MURDER CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO MANSLAUGHTER (THIRD DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING... FAMILY COURT RELIED ON HEARSAY (WHAT MOTHER TOLD THE CASEWORKER) IN THIS NEGLECT...