Crawford v. Kelly

124 A.D.2d 1018, 508 N.Y.S.2d 961, 1986 N.Y. App. Div. LEXIS 62358

Opinion

Memorandum: In this CPLR article 78 petition to annul a disciplinary determination, the petition failed to allege the two grounds of error argued by petitioner before Special Term and on this appeal: lack of substantial evidence to support the charge and failure of the written misbehavior report to give sufficient notice of the charge to enable petitioner to contest it. It is fundamental that the courts should not consider allegations not raised in the petition (see, Geneva Gen. Hosp. Nursing Home Co. v Axelrod, 92 AD2d 739, 740). In any event, the form petition used here, which was attested to by petitioner’s attorney but which contained no factual allegations, was insufficient to raise any issues for resolution by Special Term (see, Matter of Elliott v Kelly, 117 AD2d 1002; Matter of Dennehy v Coughlin, 116 AD2d 1001). Additionally, we note that, even if a substantial evidence question had been properly raised in the petition, Special Term erred in passing on that issue instead of transferring it to this court (CPLR 7804 [g]). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — art 78.) Present — Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.