
    In the Matter of Jeff Sinclair, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
   Judgment unanimously reversed and matter remitted to Supreme Court, Wyoming County, for further proceedings, in accordance with the following memorandum: Special Term erred in refusing to sign petitioner’s order to show cause and declining to consider his CPLR article 78 petition on the ground that the allegations “did not rise to the level sufficient to justify judicial intervention.” Petitioner, an inmate at Attica Correctional Facility, claims that the adjustment committee of that facility improperly deprived him of exercise for 10 days as a sanction in contravention of 7 NYCRR 301.5 (b), which provides: “[E]very inmate shall be permitted to exercise outside of his cell for at least one hour each day”. Respondent argues that the regulation applies only to inmates in special or segregated housing or confined to their cells and thus did not affect petitioner, who was in the general population. One court has agreed with petitioner’s interpretation of the regulation as applying to all inmates (see Matter ofBowe v Smith, 119 Mise 2d 453). An administrative agency is bound by its own regulations (see Matter of Frick v Bahou, 56 NY2d 777) and the proceeding, alleging that respondent failed to comply with 7 NYCRR 301.5 (b), should not have been handled summarily (cf. Matter of Salinas v Henderson, 40 AD2d 939). Petitioner is entitled to a determination on the merits on his claim. (Appeal from judgment of Supreme Court, Wyoming County, Kane, J. — art 78.) Present — Hancock, Jr., J. P., Denman, Boomer, Green and O’Donnell, JJ.  