Johnson v. Scully

156 A.D.2d 562, 550 N.Y.S.2d 831, 1989 N.Y. App. Div. LEXIS 15949

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1989
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Superintendent of the Green Haven Correctional Facility, dated June 7, 1988, which, after a hearing, found that the petitioner was guilty of violations of institutional rules of the Department of Correction and imposed penalties, the appeal is from a judgment of the Supreme Court, Dutchess County (Bernhard, J.), dated August 10, 1989, which annulled the determination.

Ordered that the judgment is affirmed, without costs or disbursements.

Pursuant to 7 NYCRR 251-5.1 (a), the appellants were required to commence the Superintendent’s proceeding within seven days of the petitioner’s incarceration in a special housing unit. As it is undisputed that the petitioner was continuously confined to a special housing unit from May 23, 1988, first at the Ossining Correctional Facility and then at the Green Haven Correctional Facility, and that a disciplinary hearing was not commenced until May 31, 1988, the determination must be annulled and all references to the Superintendent’s proceeding in the petitioner’s institutional record must be expunged (see, Matter of Hawkins v Scully, 146 AD2d 627; Matter of Brito v Sullivan, 141 AD2d 819; Matter of Coley v Sullivan, 126 AD2d 641; People ex rel. De Fulmer v Scully, 110 AD2d 671; Matter of Lozada v Scully, 108 AD2d 859).

We reject the appellants’ argument that the petitioner knowingly waived his right to object to the timeliness of the proceeding (see, Matter of Garcia v LeFevre, 64 NY2d 1001). In this regard, we note that he immediately raised the issue of timeliness in his administrative appeal. Sullivan, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.