Richards v. Kuhlmann

241 A.D.2d 577, 660 N.Y.S.2d 1016, 1997 N.Y. App. Div. LEXIS 7249

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1997
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Ledina, J.), entered August 8, 1996 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for failure to state a cause of action.

While an inmate at Sullivan Correctional Facility in Sullivan County, petitioner was found guilty after a disciplinary hearing of violating a prison disciplinary rule prohibiting inmates from harassing employees. Thereafter, he commenced this proceeding pursuant to CPLR article 78 challenging the administrative determination. Instead of serving an answer to the petition, respondent made a motion to dismiss it. Supreme Court granted the motion and petitioner appeals.

In dismissing the proceeding, Supreme Court ruled that the administrative determination was supported by substantial evidence. Prior to addressing this issue, Supreme Court should have directed respondent to serve an answer to the petition together with pertinent exhibits, including a copy of the transcript of the disciplinary hearing. Therefore, we must reverse and remit the matter to Supreme Court for this purpose (see, Matter of Scott v Commissioner of Correctional Servs., 194 AD2d 1042, 1043).

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court where respondent will be permitted to serve an answer within 20 days of the date of this Court’s decision.