Coley v. Sullivan

126 A.D.2d 641, 511 N.Y.S.2d 78, 1987 N.Y. App. Div. LEXIS 41773

Opinion

Proceeding pursuant to CPLR article 78 to review a determination dated March 14, 1984, which, after a Superintendent’s hearing, found that the petitioner committed an assault while incarcerated, and imposed disciplinary sanctions against him.

Adjudged that the petition is granted and the determination is annulled, on the law, without costs or disbursements, the charge is dismissed, and the respondents are directed to expunge from the petitioner’s institutional record all references to the Superintendent’s proceeding.

Pursuant to 7 NYCRR 251-5.1 (a), the authorities must commence a Superintendent’s proceeding within seven days of the inmate’s initial confinement on the pending charges. At bar, the respondents violated this rule by failing to commence the Superintendent’s hearing within seven days of the petitioner’s confinement to a special housing unit pending an investigation into the alleged assault. Accordingly, the determination must be annulled, and the respondents are directed to expunge all references to the instant proceeding from the petitioner’s institutional record (see, Matter of Lozada v Scully, 108 AD2d 859; Matter of Grosvenor v Dalsheim, 90 AD2d 485; see also, Matter of Estades v Coughlin, 101 AD2d 299).

In light of this determination, we need not consider the petitioner’s other contentions. Brown, J. P., Rubin, Kooper and Sullivan, JJ., concur.