Ortiz v. Goord

302 A.D.2d 830, 754 N.Y.S.2d 604, 2003 N.Y. App. Div. LEXIS 1764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2003
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the possession of alcohol after a search of his cell disclosed approximately IV2 gallons of a liquid that subsequently tested positive for the presence of alcohol. In this CPLR article 78 proceeding petitioner contends, inter alia, that the determination under review must be annulled as a result of respondent’s failure to issue an administrative determination “within 60 days of receipt of the appeal” (7 NYCRR 254.8).

* While petitioner is correct that the determination under review exceeds the time limitation by two days, such limitation is directive rather than mandatory (see Matter of Sheppard v LeFevre, 116 AD2d 867). As petitioner has failed to show that this delay caused “substantial prejudice” to his case (Matter of Davis v Bennett, 256 AD2d 791), this nominal delay does not require annulment of the determination (see Matter of Powell v Coughlin, 217 AD2d 774). We have reviewed the additional issues raised herein and found them to be without merit.

Cardona, P.J., Crew III, Carpinello, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although petitioner has abandoned the substantial evidence question that brought about the transfer of this matter, we will nonetheless retain it in the interest of judicial economy and address his remaining contentions (see Matter of Ortiz v Selsky, 272 AD2d 809).