PRESENT: HONORABLE MARK H. DADD

Acting Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT : COUNTY OF WYOMING

________________________________________

In the Matter of the Application of

TYRONE SAMULES, #91-A-2793,

Petitioner

O R D E R

v.

Index No. 19,020

GLENN S. GOORD, Commissioner,

Department of Correctional Services, Respondent

FOR RELIEF PURSUANT TO ARTICLE 78 CPLR

________________________________________

For the Petitioner

WYOMING COUNTY-ATTICA LEGAL

AID BUREAU, INC.

Norman P. Effman, Director

For the Respondents

ELIOT SPITZER, Attorney General

by Ann C. Williams

Assistant Attorney General

By petition pursuant to Article 78 of the CPLR verified on March 22, 2000, Tyrone Samules alleges that he was improperly denied access to law library materials and medical records. Petitioner appeared with counsel assigned by an order to show cause dated April 25, 2000. He has submitted further exhibits in support of the petition and a "traverse", dated June 11, 2000, pursuant to the letters of his attorney dated May&nbsp15, 2000 and June 14, 2000. Respondent has moved to dismiss the petition, upon the ground that the petitioner has failed to exhaust his administrative remedies, by notice of motion dated May&nbsp24, 2000, supported by the affirmation of Ann C. Williams, Assistant Attorney General, dated May 24, 2000, and the affidavit of George Struebel, sworn to on May 24, 2000.

The motion should be granted because administrative records show that the petitioner never filed a grievance in this matter (see Matter of Patterson v. Smith, 53 N.Y.2d 98 [1981]; Matter of Harrison v. Leonardo, 183 A.D.2d 983 [1992]; Matter of Hall v. Woodburne Correctional Facility Medical Department, 186 A.D.2d 965 [1992], motion for leave to appeal denied 81 N.Y.2d 703).

NOW, THEREFORE, it is hereby

ORDERED that the petition is dismissed, without prejudice to the petitioner's right to file a grievance on his claims.

DATED: August 10, 2000

Warsaw, New York



Acting Supreme Court Justice