| Matter of Jackson v Fischer |
| 2009 NY Slip Op 08526 [67 AD3d 1207] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carl Jackson, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (O'Shea, J.), entered January 24, 2008 inChemung County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
Following a tier III disciplinary hearing, petitioner was found guilty of creating adisturbance, unhygienic acts, interference with an employee and destruction of state property.That determination was upheld upon administrative review and, thereafter, petitionercommenced this CPLR article 78 proceeding. Supreme Court dismissed the petition on theground that it was untimely, prompting this appeal. We now affirm on different grounds.
Initially, we find that Supreme Court erred in dismissing the petition as untimely. The statuteof limitations period did not begin to run until petitioner received notice of the finaladministrative determination and respondent bore the burden of establishing that date and,further, that the proceeding was commenced more than four months thereafter (see Matter of Chrysler v Goord, 49AD3d 1342, 1343 [2008]; Matter of Warburton v Department of CorrectionalServs., 251 AD2d 831, 832 [1998]; Matter of Edwards v Coughlin, 191 AD2d 1044,1044-1045 [1993]). Here, respondent alleges that petitioner received the determination on June20, 2007, which would have rendered his petition, entered October 25, 2007, untimely. However,the record demonstrates only that petitioner signed for two documents on that date, neither ofwhich can be definitively identified as the determination in question. As such, we conclude thatrespondent failed to meet its burden and the petition should not have been dismissed as untimely.[*2]
Turning to the substance of petitioner's contentions, wecannot say that, in light of petitioner's continued argumentative and disruptive behavior, theHearing Officer erred in removing him from the hearing (see Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49AD3d 1046, 1047 [2008]). Similarly, the record does not indicate, despite the fact thatpetitioner was removed, that the Hearing Officer failed to conduct the hearing in a fair andimpartial manner, or that the determination flowed from any bias (see Matter of Chavis vGoord, 58 AD3d 954, 955 [2009]; Matter of Odom v Goord, 238 AD2d 816, 818[1997]).
Petitioner's remaining arguments have been examined and found to be without merit.
Peters, J.P., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.