Dash v. Goord

Appellate Division of the Supreme Court of New York

Dash v. Goord

255 A.D.2d 978, 682 N.Y.S.2d 322, 1998 N.Y. App. Div. LEXIS 12254

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

DecidedNovember 13, 1998

StatusPublished

Cited by7 cases

This text of 255 A.D.2d 978 (Dash v. Goord) 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

Dash v. Goord, 255 A.D.2d 978, 682 N.Y.S.2d 322, 1998 N.Y. App. Div. LEXIS 12254 (N.Y. Ct. App. 1998).

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Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination is supported by substantial evidence. The conflicting testimony presented credibility issues for the Hearing Officer to resolve, and we perceive no basis in the record to disturb the Hearing Officer’s resolution of those issues (see, Matter of Foster v Coughlin, 76 NY2d 964, 966).

Petitioner contends that, because the Hearing Officer failed to request extensions of the date for completion of the hearing before expiration of the 14-day time limitation or before the previous extension expired, he failed to complete the hearing in a timely manner (see, 7 NYCRR 251-5.1 [b]). Petitioner failed to exhaust his administrative remedies with respect to that contention (see, Matter of Muhammad v Coombe, 237 AD2d 993; Matter of Hay v Coombe, 229 AD2d 1015, lv denied 88 NY2d 816). In any event, the time period is directory, not mandatory, and, absent a showing of substantial prejudice to petitioner, the failure to complete the hearing in a timely manner does not warrant annulment of the determination (see, Matter of Comfort v Irvin, 197 AD2d 907, 908, lv denied 82 NY2d 662; Matter of Lugo v Coughlin, 182 AD2d 920). Petitioner was informed of the extensions and the reasons therefor, i.e., to obtain the testimony of witnesses requested by petitioner and to resolve a claim by petitioner that inmate witnesses were being threatened or intimidated by facility employees. Additionally, he failed to establish that he was [979]*979prejudiced by the delay (see, Matter of Lugo v Coughlin, supra; Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603).

We have reviewed the remaining contentions of petitioner and conclude that they lack merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.

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—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination is supported by substantial evidence. The conflicting testimony presented credibility issues for the Hearing Officer to resolve, and we perceive no basis in the record to disturb the Hearing Officer’s resolution of those issues (see, Matter of Foster v Coughlin, 76 NY2d 964, 966).

Petitioner contends that, because the Hearing Officer failed to request extensions of the date for completion of the hearing before expiration of the 14-day time limitation or before the previous extension expired, he failed to complete the hearing in a timely manner (see, 7 NYCRR 251-5.1 [b]). Petitioner failed to exhaust his administrative remedies with respect to that contention (see, Matter of Muhammad v Coombe, 237 AD2d 993; Matter of Hay v Coombe, 229 AD2d 1015, lv denied 88 NY2d 816). In any event, the time period is directory, not mandatory, and, absent a showing of substantial prejudice to petitioner, the failure to complete the hearing in a timely manner does not warrant annulment of the determination (see, Matter of Comfort v Irvin, 197 AD2d 907, 908, lv denied 82 NY2d 662; Matter of Lugo v Coughlin, 182 AD2d 920). Petitioner was informed of the extensions and the reasons therefor, i.e., to obtain the testimony of witnesses requested by petitioner and to resolve a claim by petitioner that inmate witnesses were being threatened or intimidated by facility employees. Additionally, he failed to establish that he was [979]*979prejudiced by the delay (see, Matter of Lugo v Coughlin, supra; Matter of Bernacet v Coughlin, 145 AD2d 802, lv denied 74 NY2d 603).

We have reviewed the remaining contentions of petitioner and conclude that they lack merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.

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Bluebook (online)

255 A.D.2d 978, 682 N.Y.S.2d 322, 1998 N.Y. App. Div. LEXIS 12254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dash-v-goord-nyappdiv-1998.

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