Matter of Green v Dubray

Matter of Green v Dubray 2008 NY Slip Op 09512 [57 AD3d 1051] December 4, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Shawn Green, Appellant, v Keith Dubray, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Shawn Green, Elmira, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered January 25, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. In the petition, petitioner did not set forth his allegations in plain and concise terms in consecutively numbered paragraphs in accordance with CPLR 3014. Respondent moved to dismiss the petition on this basis. Supreme Court granted the motion and conditionally dismissed the petition unless petitioner served an amended petition complying with CPLR 3014 within 30 days. Petitioner did not serve an amended petition and he now appeals.

We affirm. CPLR 3014 explicitly provides that "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs." The petition in the case at hand does not comply with these requirements as it contains no numbering and references documentation outside the petition. In such a situation, "the appropriate remedy is dismissal of the pleading with leave to replead" (Matter of Gerena v New York State Div. of Parole, 266 AD2d 761, 762 [1999]). Inasmuch as Supreme Court granted such relief, we find no reason to disturb its decision.

Mercure, J.P., Carpinello, Kane, Kavanagh and Stein, JJ., concur. Ordered the judgment is affirmed, without costs.