| Matter of Taylor v Fischer |
| 2011 NY Slip Op 00315 [80 AD3d 1037] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Harold Taylor, Appellant, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
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Appeal from a judgment of the Supreme Court (McGrath, J.), entered April 29, 2010 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent finding petitioner guilty of violating certainprison disciplinary rules.
While incarcerated at Clinton Correctional Facility in Clinton County, petitioner was chargedin a misbehavior report with various disciplinary rule violations after he struck a correctionofficer with his fist. He was found guilty of the charges following a tier III disciplinary hearingand the determination was affirmed on administrative appeal. Petitioner then commenced thisCPLR article 78 proceeding challenging the determination. Following service of respondent'sanswer, Supreme Court dismissed the petition and this appeal ensued.
Initially, inasmuch as the petition does not raise a question of substantial evidence, we findno merit to petitioner's claim that Supreme Court should have transferred the proceeding in thefirst instance (see Matter of McKethan vBezio, 59 AD3d 762, 762 [2009], lv denied 12 NY3d 709 [2009]). As forpetitioner's assertion that the disciplinary hearing was not commenced or completed in a timelymatter, he failed to raise this objection at the hearing and has, therefore, failed to preserve it (see Matter of Smith v Fischer, 64AD3d 1061, 1062 [2009], lv denied 13 NY3d 712 [2009]; Matter of Rosario v Goord, 25 AD3d841, 842 [2006]). Furthermore, we are [*2]not persuaded thatthe administrative reversal of a prior disciplinary determination, which precipitated petitioner'stransfer to Clinton Correctional Facility where he incurred the violations at issue, mandatesadministrative reversal of the disciplinary determination under review. Petitioner's remainingcontentions have not been preserved and are not properly before us.
Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed, without costs.