Talley v. Walker

Appellate Division of the Supreme Court of New York

Talley v. Walker

203 A.D.2d 924, 611 N.Y.S.2d 408

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

DecidedApril 15, 1994

StatusPublished

Cited by2 cases

This text of 203 A.D.2d 924 (Talley v. Walker) 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.

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Talley v. Walker, 203 A.D.2d 924, 611 N.Y.S.2d 408 (N.Y. Ct. App. 1994).

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Opinion

—Judgment unanimously affirmed. Memorandum: We reject the contention of petitioner that his Tier III hearing was not completed in a timely fashion. Although the hearing was not completed within 14 days following the writing of the misbehavior report (see, 7 NYCRR 251-5.1 [b]), it was commenced within that time limit and an extension was properly authorized by the Commissioner’s designee (see, Matter of Comfort v Irvin, 197 AD2d 907, lv denied 82 NY2d 662; Matter of Graham v Henderson, 158 AD2d 911). Petitioner’s contention that the misbehavior report was actually written on a date earlier than the date set forth on the report presented an issue of credibility for the Hearing Officer to resolve. The Hearing Officer was entitled to credit the charging officer’s testimony that the report was written on the same day that it was dated. In any event, the 14-day time limit is directory only (see, Matter of Comfort v Irvin, supra).

We have reviewed the remaining contentions of petitioner and find each one to be lacking in merit. (Appeal from Judgment of Supreme Court, Cayuga County, Contiguglia, J.— Article 78.) Present — Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.

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—Judgment unanimously affirmed. Memorandum: We reject the contention of petitioner that his Tier III hearing was not completed in a timely fashion. Although the hearing was not completed within 14 days following the writing of the misbehavior report (see, 7 NYCRR 251-5.1 [b]), it was commenced within that time limit and an extension was properly authorized by the Commissioner’s designee (see, Matter of Comfort v Irvin, 197 AD2d 907, lv denied 82 NY2d 662; Matter of Graham v Henderson, 158 AD2d 911). Petitioner’s contention that the misbehavior report was actually written on a date earlier than the date set forth on the report presented an issue of credibility for the Hearing Officer to resolve. The Hearing Officer was entitled to credit the charging officer’s testimony that the report was written on the same day that it was dated. In any event, the 14-day time limit is directory only (see, Matter of Comfort v Irvin, supra).

We have reviewed the remaining contentions of petitioner and find each one to be lacking in merit. (Appeal from Judgment of Supreme Court, Cayuga County, Contiguglia, J.— Article 78.) Present — Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.

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203 A.D.2d 924, 611 N.Y.S.2d 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talley-v-walker-nyappdiv-1994.

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