Payne v. Smith

97 A.D.2d 960, 469 N.Y.S.2d 40, 1983 N.Y. App. Div. LEXIS 20779

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1983
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Petitioner, an inmate at Attica Correctional Facility, was charged with violating disciplinary rules. In a prior CPLR article 78 proceeding, the court annulled the determination of the superintendent and ordered a new proceeding before another hearing officer. Written charges were again served upon the petitioner and he was notified to appear before the new hearing officer. Petitioner did not appear in response to the notice and the hearing officer, relying upon written reports of correction officers and the testimony of the officers at the prior hearing, sustained the charges against petitioner and imposed punishment. Petitioner brought this CPLR article 78 proceeding to annul the determination, contending that the prior order was not complied with in that the hearing was not de novo as ordered by the court, and that the petitioner was denied his right to have witnesses interviewed and called to testify at the new proceeding. Following a hearing on the petition, the court found that petitioner “knowingly and willfully refused to attend” the new proceeding, and he dismissed the petition. The judgment dismissing the petition is affirmed. The petitioner may not question the validity of the proceeding from the point after he refused to appear before the hearing officer (People ex rel. Morgan v La Vallee, 49 AD2d 652, mot for lv to app den 37 NY2d 710). (Appeal from judgment of Supreme Court, Wyoming County, Hannigan, J. — art 78.) Present — Callahan, J. P., Denman, Boomer, Green and Schnepp, JJ.