Nowlin v. Schriver , 719 N.Y.S.2d 138 ( 2000 )

Appeal from a judgment of the Supreme Court (Torraca, J.), entered March 27, 2000 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents denying petitioner’s grievance.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination denying a grievance in which he claimed that he was wrongfully removed from his prison work assignment and was entitled to reinstatement and back pay. Supreme Court initially dismissed the petition for failure to state a cause of action and this Court, concluding that dismissal was premature, reversed and remitted the matter for further proceedings (269 AD2d 630). Following service of respondents’ answer, Supreme Court determined that the denial of petitioner’s grievance was not arbitrary and capricious, dismissed the petition and denied petitioner’s subsequent motion for reargument. Petitioner now appeals.

Initially, although petitioner claims that he appealed from the order denying his motion for reargument, we note that the record contains no notice of appeal from that order. In any event, no appeal lies from the denial of a motion for reargument (see, Heritage v Manee, 265 AD2d 657, 658). As for petitioner’s appeal from the judgment dismissing the petition, petitioner has failed to demonstrate that the denial of his grievance was arbitrary, capricious or affected by an error of law (see, Matter of Stephens v Central Off. Review Comm, of N. Y. State Dept. of Correctional Servs., 255 AD2d 845, 846) inasmuch as our review of the record reveals that the decision to remove petitioner from his job assignment was rationally based upon his poor performance record. Moreover, petitioner’s request for back pay may not be entertained in this CPLR article 78 proceeding (see, Matter of Gonzalez v Coughlin, 198 AD2d 683, lv denied 83 NY2d 753; Matter of Sabo v Racette, 124 AD2d 920, 921). Under these circumstances, the petition was appropriately dismissed.

Cardona, P. J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.