Matter of Barletta v. Martuscello

── Matter of Barletta v. Martuscello ── Court: Appellate Division of the Supreme Court of the State of New York Date: May 21, 2026 Category: General <div>Matter of Barletta v Martuscello - 2026 NY Slip Op 03213 <div> skip to main content </div> <div> <p>It appears you are using Adblock. Please disable Adblock to best experience our website.</p> </div> <div> <header> <div> <img src="/reporter/images/nys-logo-white.svg" alt=""> </div> <div> <span title="Law Reporting Bureau Home Page">Law Reporting <br>Bureau <span></span></span> <span>Thomas J.K. Smith, State Reporter</span> <nav> Court Decisions Resources About </nav> </div> <div> <img src="/reporter/images/lrb-seal.png" alt=""> </div> </header> </div> <nav> <ol> <li>Home</li> <li>All Court Decisions</li> <li>Decisions</li> </ol> </nav> <div> <div> <h1>Matter of Barletta v Martuscello</h1> <p>2026 NY Slip Op 03213</p> <p>May 21, 2026</p> <p>Appellate Division, Third Department</p> <p>Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.</p> <p>This decision is uncorrected and subject to revision before publication in the Official Reports.</p> </div> <div> <p>In the Matter of Daniel A. Barletta, Appellant,</p> <p>v</p> <p>Daniel F. Martuscello III, as Commissioner of Corrections and Community Supervision, Respondent.</p> </div> <p>Decided and Entered:May 21, 2026</p> <p>CV-25-1054</p> <p>Calendar Date: April 17, 2026</p> <p>Before: Aarons, J.P., Ceresia, Fisher, Powers And Ryba, JJ.</p> <div> <p>Daniel A. Barletta, Elmira, appellant pro se.</p> <p>Letitia James, Attorney General, Albany (William M. Hayes of counsel), for respondent.</p> </div> <span>[*1]</span> <p>Appeal from a judgment of the Supreme Court (Adam Silverman, J.), entered June 18, 2025 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.</p> <p>Petitioner, an incarcerated individual, filed a grievance challenging a Department of Corrections and Community Supervision directive that, although permitting acrylic paints, does not permit oil-based paints in correctional facilities. After the Incarcerated Grievance Resolution Committee agreed that petitioner should be allowed a special permit to own and use oil-based paint, the matter was forwarded to the superintendent. The superintendent disagreed and denied the grievance. Petitioner appealed the denial to the Central Office Review Committee (hereinafter CORC), which appeal was received by CORC on or about September 25, 2024.</p> <p>On December 26, 2024, prior to CORC rendering a determination, petitioner commenced this CPLR article 78 proceeding contending that the decision to restrict the use of oil-based paints was arbitrary and capricious. Supreme Court granted respondent's motion to dismiss the petition for petitioner's failure to exhaust his administrative remedies. This appeal ensued.^FN1</p> <p>We affirm. Although CORC did not issue a final decision within the 30-day time limit set forth in 7 NYCRR 701.5 (d) (3) (ii), such time limits are directory, not mandatory (<i>see Matter of Barletta v Martuscello</i>, 240 AD3d 1107, 1108-1109 [3d Dept 2025];<i> Matter of McMillian v Krygier</i>, 197 AD3d 800, 801-802 [3d Dept 2021]). As such, petitioner was required to demonstrate that he was substantially prejudiced by CORC's delay and thereby excused from exhausting his administrative remedies (<i>see Matter of McMillian v Krygier</i>, 197 AD3d at 802; <i>Matter of Hendricks v Annucci</i>, 179 AD3d 1232, 1233 [3d Dept 2020], <i>lv denied</i> 35 NY3d 913 [2020], <i>cert denied</i> ___ US ___, 142 S Ct 189 [2021]; <i>Matter of Golston v Director of Div. of Nutritional Servs.</i>, 168 AD3d 1299, 1300 [3d Dept 2019]). As petitioner has not made such a showing here, "CORC was not divested of jurisdiction" (<i>Matter of Golston v Director of Div. of Nutri