| Matter of Fuentes v Fischer |
| 2011 NY Slip Op 08048 [89 AD3d 1468] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Jose A. Fuentes, Appellant, v Brian Fischer,Commissioner, New York State Department of Correctional Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), enteredJune 25, 2010 in a proceeding pursuant to CPLR article 78. The judgment denied the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination after a tier III hearing that he violated certain inmate rules. We note at the outset that, asrespondent correctly contends, petitioner withdrew the substantial evidence issue when he appeared inSupreme Court, and the court thus was not required to transfer the proceeding to this Court to decidethat issue (see CPLR 7804 [g]), nor do we address it. Petitioner failed to exhaust hisadministrative remedies with respect to his sole remaining contention, i.e., that his due process rightswere violated when he was penalized for attempting to mail certain documents to his home, havingfailed to raise that contention at the tier III hearing, and this Court has no discretionary authority toreach that contention (see Matter of Nelson v Coughlin, 188 AD2d 1071 [1992], appealdismissed 81 NY2d 834 [1992]). Present—Centra, J.P., Fahey, Peradotto, Green andGorski, JJ.