Shomo v. Zon
827 N.Y.S.2d 391
N.Y. App. Div.
2006
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In the Matter of JOSE SHOMO, Petitioner, v ANTHONY ZON, as Superintendent of Wende Correctional Facility, Respondent.

Appellate Division of the Supreme Court of New York, Fourth Department

827 NYS2d 391

Scudder, P.J., Hurlbutt, Gorski, Martoche and Smith, JJ.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Shirley Troutman, A.J.], entered April 14, 2005) to review a determination of respondent. The determination denied petitioner‘s inmate grievance.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: In this pro se CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804 (g), petitioner seeks review of a determination denying his inmate grievance that he has been denied adequate medical care. Initially, we agree with respondent that the determination “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law‘” (), and thus Supreme Court erred in transferring the matter to this Court based on a substantial evidence issue (see ). Nevertheless, we retain jurisdiction in the interest of judicial economy and dismiss the petition (see CPLR 7804 [g]).

“In order for a prisoner to prevail on a claim that he has been denied adequate medical care, he must demonstrate that prison officials acted in a manner ‘sufficiently harmful to evidence deliberate indifference to serious medical needs‘” (; see , reh denied ). The evidence supports respondent‘s determination that petitioner‘s medical needs are being met, and petitioner failed to establish that respondent is deliberately indifferent to serious medical needs of petitioner. Present—Scudder, P.J., Hurlbutt, Gorski, Martoche and Smith, JJ.