Cliff v. Mayo , 706 N.Y.S.2d 745 ( 2000 )

—Appeal from a judgment of the Supreme Court (McGill, J.), entered May 29, 1998 in Clinton County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as duplicative.

Petitioner, a prison inmate, commenced this proceeding by order to show cause dated December 17, 1997 to challenge a disciplinary determination, contending that he was improperly denied a prehearing assistant and that the regulation denying such assistance was unconstitutional. Subsequently, by a second order to show cause dated December 19,1997, petitioner commenced a second proceeding again challenging the determination and contending that he was denied assistance. Respondents, having answered the second proceeding first, thereafter moved to dismiss the first proceeding as successive. Supreme Court granted respondents’ motion to dismiss finding that regardless of the named individual respondents, the same issue was presented in both proceedings and there was no basis for filing a separate proceeding against the individual correction officers.

We affirm. Supreme Court did not err in dismissing the first proceeding based upon the pendency of the second proceeding, which challenged the same administrative determination and raised the very same issues (see, Matter of Guzman v Chairman, N. Y. State Div. of Parole, 260 AD2d 735, lv denied 93 NY2d 812). Although petitioner named different correction officers in each of the two proceedings (see, CPLR 3211 [a] [4]), inasmuch as the parties were substantially identical, dismissal was warranted (see, Barringer v Zgoda, 91 AD2d 811). We have considered petitioner’s remaining contentions and find them to be lacking in merit.

Cardona, P. J., Mercure, Peters, Spain and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.