Matter of Ramirez v Annucci

Matter of Ramirez v Annucci 2015 NY Slip Op 09589 Decided on December 24, 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: December 24, 2015
520967

[*1]In the Matter of MIGUEL RAMIREZ, Appellant,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: October 27, 2015
Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.

Miguel Ramirez, Stormville, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered May 6, 2015 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner commenced this proceeding challenging the denial of two grievances related to the inspection of and subsequent discovery of a weapon in his cell. Prior to respondents filing an answer, petitioner moved to consolidate the instant proceeding with a related CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of possessing a weapon. Supreme Court, noting that it no longer had jurisdiction over one of the proceedings because it had been transferred to this Court, denied the motion to consolidate and then dismissed

the petition. This appeal ensued.

Although the merits of the motion to consolidate were properly decided, Supreme Court erred when it inexplicably dismissed the petition. In addition to the fact that respondents had not yet filed an answer, Supreme Court did not address the merits of the grievance determinations in dismissing the petition. In view of the foregoing, the judgment must be modified and matter must be remitted for Supreme Court to address the merits of the petition.

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

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed the petition; matter remitted to the Supreme Court to permit respondents to serve an answer within 20 days of the date of this Court's decision; and, as so modified, affirmed.