Grosvenor v. Dalsheim

90 A.D.2d 485, 454 N.Y.S.2d 553, 1982 N.Y. App. Div. LEXIS 18498

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1982
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, to review a determination, made after a superintendent’s proceeding, that petitioner had been under the influence of barbiturates while incarcerated. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, charge dismissed, and respondents are directed to expunge from the petitioner’s institutional record all reference to the superintendent’s proceeding. Respondents’ failure to hold the superintendent’s proceeding within seven days of petitioner’s incarceration in the special housing unit, violated their own regulations and constitutes a ground for annulment of the determination (see Matter of Johnson v Smith, 83 AD2d 721, 722; Powell v Ward, 392 F Supp 628, mod 542 F2d 101). In such a situation, expungement is a proper remedy (see Matter of Hilton v Dalsheim, 81 AD2d 887,888; Matter of Johnson v Smith, supra). In light of this determination we need not consider petitioner’s other contentions. Titone, J. P., Weinstein, Gulotta and Niehoff, JJ., concur.