Rivera v. Fischer

Appellate Division of the Supreme Court of New York

Rivera v. Fischer

57 A.D.3d 1063, 867 N.Y.2d 711

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 4, 2008

StatusPublished

Cited by2 cases

This text of 57 A.D.3d 1063 (Rivera v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rivera v. Fischer, 57 A.D.3d 1063, 867 N.Y.2d 711 (N.Y. Ct. App. 2008).

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Opinion

[1064]*1064Petitioner, a prison inmate, was found guilty following a tier III disciplinary hearing of making threats, refusing a direct order and interfering with an employee. The administrative affirmance of that determination prompted petitioner to commence this CPLR article 78 proceeding seeking annulment.

As an initial matter, we note that, contrary to petitioner’s assertion, Supreme Court properly transferred the proceeding to this Court inasmuch as the petition raises a question of substantial evidence (see Matter of Rodriguez v Goord, 40 AD3d 1324, 1325 [2007]). Turning to the merits, the misbehavior report, together with the testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Wigfall v Goord, 53 AD3d 943, 943 [2008]). As for petitioner’s denial of the allegations against him, a credibility issue was created for resolution by the Hearing Officer (see Matter of Jordan v Fischer, 53 AD3d 1013 [2008]). To the extent preserved, petitioner’s remaining contentions, including his claim that he was denied a fair and impartial hearing, have been examined and found to be unavailing.

Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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[1064]*1064Petitioner, a prison inmate, was found guilty following a tier III disciplinary hearing of making threats, refusing a direct order and interfering with an employee. The administrative affirmance of that determination prompted petitioner to commence this CPLR article 78 proceeding seeking annulment.

As an initial matter, we note that, contrary to petitioner’s assertion, Supreme Court properly transferred the proceeding to this Court inasmuch as the petition raises a question of substantial evidence (see Matter of Rodriguez v Goord, 40 AD3d 1324, 1325 [2007]). Turning to the merits, the misbehavior report, together with the testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Wigfall v Goord, 53 AD3d 943, 943 [2008]). As for petitioner’s denial of the allegations against him, a credibility issue was created for resolution by the Hearing Officer (see Matter of Jordan v Fischer, 53 AD3d 1013 [2008]). To the extent preserved, petitioner’s remaining contentions, including his claim that he was denied a fair and impartial hearing, have been examined and found to be unavailing.

Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

57 A.D.3d 1063, 867 N.Y.2d 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-fischer-nyappdiv-2008.

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