Calendar Date: April 3, 2018Before: Garry, P.J., McCarthy, Devine, Rumsey and Pritzker, JJ.__________Equarn White, Auburn, appellant pro se.Barbara D. Underwood, Acting Attorney General, Albany(Allyson B. Levine of counsel), for respondent.__________Appeal from a judgment of the Supreme Court (Cholakis, J.),entered June 19, 2017 in Albany County, which, in a proceedingpursuant to CPLR article 78, granted respondent’s motion todismiss the petition.Petitioner was charged in a misbehavior report withfighting, creating a disturbance and violent conduct following anincident in the mess hall in which he was observed punchinganother inmate. At the tier II disciplinary hearing, petitionerpleaded guilty with an explanation. He was found guilty ascharged and a penalty was imposed, which included 30 days inkeeplock, and the determination was affirmed on administrativeappeal. Petitioner then commenced this CPLR article 78proceeding challenging the disciplinary determination and alsoraising allegations regarding an unrelated denial of a requestfor information under the Freedom of Information Law (see PublicOfficers Law art 6 [hereinafter FOIL]). Respondent moved todismiss for failure to state a cause of action, prior toanswering, which petitioner opposed. Supreme Court grantedrespondent’s motion and dismissed the petition, and petitionerappeals.We affirm. On a motion to dismiss pursuant to CPLR 3211(a) (7) for failure to state a claim, the facts as alleged bypetitioner in the pleading are accepted as true, and the courtmust “determine whether the facts as alleged fit within anycognizable legal theory” (McFadden v Amodio, 149 AD3d 1282, 1283[2017] [internal quotation marks and citations omitted]; see Leonv Martinez, 84 NY2d 83, 87-88 [1994]). With regard topetitioner’s claim that the Hearing Officer should have creditedthe time he spent in prehearing confinement after the incident(six days) against the 30-day keeplock penalty imposed at thehearing, it is well-established that he was not entitled to suchcredit (see Matter of Jackson v Annucci, 159 AD3d 1204, 1206[2018]; Oppenheimer v State of New York, 152 AD3d 1006, 1009[2017]). There is likewise no basis for his claim that he wasdenied the right to call witnesses to present evidence tomitigate the penalty (see 7 NYCRR 253.5). As the prisondisciplinary record establishes, petitioner made no requests forwitnesses prior to or at the hearing, and he submitted noevidence to the contrary in opposition to the motion (compareMatter of Henry v Fischer, 28 NY3d 1135, 1136, 1138 [2016]).Thus, any claim in this regard is unpreserved and not properlyraised in a CPLR article 78 proceeding (see Matter of Khan v NewYork State Dept. of Health, 96 NY2d 879, 880 [2007]; Matter ofWilson v Annucci, 148 AD3d 1281, 1282 [2017]). Notwithstandingthe liberal standard applicable to motions to dismiss (see Leon vMartinez, 84 NY2d at 87-88), “we are not obliged to acceptallegations consisting of bare legal conclusions or factualclaims flatly contradicted by documentary evidence as the basisfor a valid claim” (Matter of Wir Assoc., LLC v Town ofMamakating, 157 AD3d 1040, 1042 [2018] [internal quotation marks,brackets and citations omitted]; see Myers v Schneiderman, 30NY3d 1, 11 [2017]). Consequently, Supreme Court correctlydetermined that, as there is no cognizable theory to supportpetitioner’s claims regarding the prison disciplinarydetermination, he has no cognizable claim and respondent isentitled to dismissal of the petition to that extent (see Simkinv Blank, 19 NY3d 46, 52-55 [2012]; Matter of Sullivan Farms IV,LLC v Village of Wurtsboro, 134 AD3d 1275, 1277 [2015]).We reach a similar conclusion with regard to petitioner’scontentions addressed to respondent’s failure to respond to hisclaimed FOIL request. In its motion to dismiss, respondentsubmitted an affidavit of the records coordinator for theDepartment of Corrections and Community Supervision attestingthat, after a review, no record was found of petitioner’s claimedFOIL request. Further, the coordinator asserted that whenpetitioner administratively appealed the nonresponse to his FOILrequest, he was advised that no record of that request could befound and that he should resubmit the request. In response tothe motion to dismiss, petitioner did not assert that he refiledhis FOIL request when directed to do so, and merely submitted asworn affidavit asserting that he had filed the original request.Under these circumstances, where petitioner failed to file arequest when advised that no request could be found, petitionerfailed to exhaust his administrative remedies (see Matter ofBeaubrun v Annucci, 144 AD3d 1309, 1310-1311 [2016]). Thus,Supreme Court correctly determined that the petition did notstate a cause of action related to this purported request, whichcould not be found, and respondent’s motion to dismiss wasproperly granted.Garry, P.J., McCarthy, Devine, Rumsey and Pritzker, JJ.,concur.ORDERED that the judgment is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
