Matter of Clark v Schriro

Matter of Matter of Clark v Schriro 2012 NY Slip Op 00118 Decided on January 12, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 12, 2012
Mazzarelli, J.P., Andrias, Saxe, Freedman, JJ.
6527 106917/10

[*1]In re Jesse Clark, Petitioner-Appellant, —— Dr.

v

Dora Schriro, Commissioner of the New York City Department of Correction, et al., Respondents-Respondents.




Koehler & Isaacs LLP, New York (Liam L. Castro of counsel),
for appellant.
Michael A. Cardozo, Corporation Counsel, New York
(Elizabeth I. Freedman of counsel), for respondents.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered January 6, 2011, which denied the CPLR article 78 petition seeking, inter alia, to compel respondents to promptly afford petitioner a disciplinary hearing before the New York City Office of Administrative Trials and Hearings, and granted respondents' cross motion to dismiss the petition, unanimously affirmed, without costs.

Supreme Court properly found that since respondents were not required to provide petitioner with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter § 1046[c]), their failure to do so for more than a year after charging petitioner with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act. Accordingly, the petition did not plead an action for mandamus to compel (see Matter of Garrison Protective Servs. v Office of Comptroller of City of N.Y., 92 NY2d 732, 736 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 12, 2012

CLERK