The case of claimant Steven Harvey arose from his participation in a
micro-computer repair apprenticeship program at Woodbourne Correctional Facility
beginning on February 27, 1997. On December 14, 1998, Harvey was transferred to
another correctional facility, which did not have an apprenticeship program,
effectively terminating his participation. In his claim, he alleged that this
breached the "apprenticeship agreement" he had signed in connection with the
program. In a June 26, 2000 Decision and Order, this Court dismissed Harvey's
claim on the grounds that the very language of the "apprenticeship agreement"
contemplated termination prior to completion of the program and that in any
event, the decision to transfer inmates between correctional facilities lies
within the discretion of the Commissioner of Corrections. This is Harvey's
motion for reargument pursuant to CPLR §2221(d) and for permission to
amend his claim. CPLR 2221(d)(2) provides in relevant part that a motion for
leave to reargue "shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion . . ."
Harvey asserts that the court mistakenly assumed that he signed a two-page
(1997) form of the apprenticeship agreement that contained termination
provisions (Exhibit C to his reply papers on the previous motion), whereas he
actually signed a one-page (1995) form which contained no provisions as to
termination (Exhibit B to his reply papers on the previous motion).
Assuming, arguendo, that Harvey did sign a one-page 1995 version of the
agreement, the very terms of that version contemplate that training could be
terminated prior to completion of the full 48-month program. See, for example,
¶6, which states that "if the Sponsor is unable to fulfill the obligations
under the apprenticeship agreement, the agreement may, with the consent
of the Apprentice, be transferred . . ." [emphasis supplied]. See also ¶7
which provides that "[t]he Sponsor agrees to give not less than 5 days notice to
the Apprentice of any proposed adverse action . . . Layoff for lack of work does
not require an advance notice."
Moreover, as pointed out in the previous decision and order, the decision to
transfer inmates between correctional facilities "lies within the discretion of
the Commissioner of Corrections . . ." Gregg v Scully, 108 AD2d 748,
749, 485 NYS2d 94, 96 (2d Dept 1985), lv denied, 65 NY2d 601, 491 NYS2d
Likewise, "[d]eterminations regarding eligibility for participation in
educational and training programs fall within the broad discretionary powers
invested in the Department of Correctional Services . . ." Nicholas v
Pataki, 233 AD2d 657, 650 NYS2d 317, 318 (3d Dept 1996). See also Allah
v Coughlin, 190 AD2d 233, 237, 599 NYS2d 651, 653-54 (3d Dept 1993) ("The
Commissioner is obligated to provide a program of education for inmates geared
to meet the objective set out in Correction Law § 136, that is, to assist
in the return of the inmate to society as a wholesome and good citizen . . .
[the] statute does not entitle petitioners to any specific education . . ."
For the foregoing reasons, having reviewed the parties'
IT IS ORDERED that motion no.
M-62293 is denied.