Evans v. Fischer

Appellate Division of the Supreme Court of New York

Evans v. Fischer

116 A.D.3d 1329, 983 N.Y.S.2d 920

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

DecidedApril 24, 2014

StatusPublished

Cited by6 cases

This text of 116 A.D.3d 1329 (Evans 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

Evans v. Fischer, 116 A.D.3d 1329, 983 N.Y.S.2d 920 (N.Y. Ct. App. 2014).

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Opinion

— Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determi[1330]*1330nation of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of harassment and making threats. Contrary to petitioner’s contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Tuitt v Martuscello, 106 AD3d 1355, 1356 [2013], lv denied 21 NY3d 865 [2013]; Matter of Burr v Fischer, 95 AD3d 1538, 1538 [2012], lv denied 19 NY3d 811 [2012]). Petitioner’s assertion that the misbehavior report was retaliatory created a credibility issue for the Hearing Officer to resolve (see Matter of Deleon v Prack, 111 AD3d 1204, 1204 [2013]).

Petitioner’s remaining contentions have been reviewed and found to be without merit.

Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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— Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determi[1330]*1330nation of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of harassment and making threats. Contrary to petitioner’s contention, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Tuitt v Martuscello, 106 AD3d 1355, 1356 [2013], lv denied 21 NY3d 865 [2013]; Matter of Burr v Fischer, 95 AD3d 1538, 1538 [2012], lv denied 19 NY3d 811 [2012]). Petitioner’s assertion that the misbehavior report was retaliatory created a credibility issue for the Hearing Officer to resolve (see Matter of Deleon v Prack, 111 AD3d 1204, 1204 [2013]).

Petitioner’s remaining contentions have been reviewed and found to be without merit.

Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

116 A.D.3d 1329, 983 N.Y.S.2d 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-fischer-nyappdiv-2014.

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