Allah v. Fischer

Appellate Division of the Supreme Court of New York

Allah v. Fischer

118 A.D.3d 1507, 987 N.Y.S.2d 920

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 20, 2014

StatusPublished

Cited by3 cases

This text of 118 A.D.3d 1507 (Allah v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allah v. Fischer, 118 A.D.3d 1507, 987 N.Y.S.2d 920 (N.Y. Ct. App. 2014).

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Opinion

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered February 4, 2013 in a CPLR article 78 proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination after a tier III hearing that he violated inmate rule 113.26 (7 NYCRR 270.2 [B] [14] [xvi]). On appeal from the judgment dismissing the petition, petitioner contends that the record is insufficient to permit judicial review because respondent failed to provide a copy of recorded conversations between petitioner and a third party. That contention is not properly before us inasmuch as it is raised for the first time on appeal (see Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 232 [1997]) and, in any event, we conclude that it is without merit. Finally, petitioner’s procedural objections, including his due process challenges, are not preserved for our review inasmuch as he did not raise those issues at the hearing (see Matter of Jones v Fischer, 111 AD3d 1362, 1363 [2013]), and he failed to exhaust his administrative remedies with respect to them because he did not raise them on his administrative appeal (see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 [1992], appeal dismissed 81 NY2d 834 [1993]).

Present—Smith, J.E, Fahey, Peradotto, Sconiers and Valentino, JJ.

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Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered February 4, 2013 in a CPLR article 78 proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination after a tier III hearing that he violated inmate rule 113.26 (7 NYCRR 270.2 [B] [14] [xvi]). On appeal from the judgment dismissing the petition, petitioner contends that the record is insufficient to permit judicial review because respondent failed to provide a copy of recorded conversations between petitioner and a third party. That contention is not properly before us inasmuch as it is raised for the first time on appeal (see Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 232 [1997]) and, in any event, we conclude that it is without merit. Finally, petitioner’s procedural objections, including his due process challenges, are not preserved for our review inasmuch as he did not raise those issues at the hearing (see Matter of Jones v Fischer, 111 AD3d 1362, 1363 [2013]), and he failed to exhaust his administrative remedies with respect to them because he did not raise them on his administrative appeal (see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 [1992], appeal dismissed 81 NY2d 834 [1993]).

Present—Smith, J.E, Fahey, Peradotto, Sconiers and Valentino, JJ.

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118 A.D.3d 1507, 987 N.Y.S.2d 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allah-v-fischer-nyappdiv-2014.

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