Matter of Cumberland v Commissioner of Corr. & Community Supervision

Matter of Cumberland v Commissioner of Corr. & Community Supervision 2015 NY Slip Op 06451 Decided on August 6, 2015 Appellate Division, Third 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 and Entered: August 6, 2015
518346

[*1]In the Matter of ROBERT CUMBERLAND, Appellant,

v

COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Calendar Date: June 8, 2015
Before: Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ.

Robert Cumberland, Stormville, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Zwack, J.), entered January 23, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to install televisions and/or radio jacks at Greenhaven Correctional Facility.

Petitioner, an inmate at Greenhaven Correctional Facility, submitted a grievance requesting that televisions and/or radio jacks be installed in each cell. Following the Central Office Review Committee's denial of his grievance, petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to install such. In its answer, respondent alleged that petitioner failed to state a cause of action. Supreme Court agreed and, accordingly, dismissed the petition. This appeal ensued.

We affirm. In a CPLR article 78 proceeding in the nature of mandamus to compel, "'the petitioner has an initial burden of presenting factual allegations of an evidentiary nature or other competent evidence tending to establish his or her entitlement to the requested relief'" (Matter of Henriquez v New York State Dept. of Correctional Servs., 61 AD3d 1191, 1192 [2009], quoting Matter of Rodriguez v Goord, 260 AD2d 736, 736-737 [1999], lv denied 93 NY2d 818 [1999]). Here, the petition alleges that, upon information and belief, all other similar correctional facilities have televisions and radio jacks in each cell; thus, respondent is required to install similar equipment at Greenhaven. We agree with Supreme Court that these assertions are not factual allegations of an evidentiary nature that tend to establish that petitioner is entitled to the relief that he seeks and, therefore, the petition was properly dismissed (see Matter of Pettus v Department of Correctional Servs., 72 AD3d 1375, 1376 [2010]). Finally, to the extent that petitioner sought discovery, Supreme Court providently exercised its discretion in denying his request (see CPLR 408; Matter of Lally v Johnson City Cent. Sch. Dist., 105 AD3d 1129, 1132 [2013]). Petitioner's remaining contentions have been examined and found to be without merit.

Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed, with costs.