Fuentes v. Fischer

89 A.D.3d 1468, 932 N.Y.2d 743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 2011
• Status: Published

Opinion

Memorandum:

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination after a tier III hearing that he violated certain inmate rules. We note at the outset that, as respondent correctly contends, petitioner withdrew the substantial evidence issue when he appeared in Supreme Court, and the court thus was not required to transfer the proceeding to this Court to decide that issue (see CPLR 7804 [g]), nor do we address it. Petitioner failed to exhaust his administrative remedies with respect to his sole remaining contention, i.e., that his due process rights were violated when he was penalized for attempting to mail certain documents to his home, having failed to raise that contention at the tier III hearing, and this Court has no discretionary authority to reach that contention (see Matter of Nelson v Coughlin, 188 AD2d 1071 [1992], appeal dismissed 81 NY2d 834 [1992]). Present— Centra, J.P, Fahey, Peradotto, Green and Gorski, JJ.