People ex rel. Martinez v. Beaver

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Michael L. D’Amico, A.J.), entered January 5, 2004 in a proceeding pursuant to CPLR article 78. The judgment granted the amended petition, directed respondents to conduct a de novo parole release interview and denied respondents’ motion to dismiss the amended petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the amended petition is dismissed.

Memorandum: Petitioner commenced this proceeding challenging the determination of the Parole Board denying him release to parole supervision and ordering that he be held for 18 months. Supreme Court erred in granting the amended petition and denying respondents’ motion to dismiss the amended petition. Petitioner’s administrative appeal was pending at the time this proceeding was commenced, and thus the amended petition should have been dismissed based upon the failure of petitioner to exhaust his administrative remedies (see Matter of Robinson v Bennett, 300 AD2d 715, 716 [2002]; Matter of Wilson v Goord, 269 AD2d 853 [2000]). The record does not support petitioner’s contention that exhaustion is not required because pursuit of the administrative appeal would have been futile (see Matter of Pfaff v Columbia-Greene Community Coll., 99 AD2d 887 [1984]). Present—Green, J.P., Hurlbutt, Kehoe, Gorski and Lawton, JJ.