| Matter of Barnes v Venettozzi |
| 2016 NY Slip Op 00550 [135 AD3d 1250] |
| January 28, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Jessie J. Barnes, Appellant, v D.Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs, etal., Respondents. |
Jessie J. Barnes, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel),for respondents.
Clark, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), enteredOctober 21, 2013 in Franklin County, which, upon reargument, adhered to its priordecision dismissing petitioner's application, in a proceeding pursuant to CPLR article 78,to review a determination of the Commissioner of Corrections and CommunitySupervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order, violentconduct, making threats, assaulting staff and violating movement procedures followingan incident that occurred on September 9, 2011 as his mechanical restraints were beingremoved in his cell. At the tier III disciplinary hearing, petitioner was twice removed forreasons of institutional safety and security based upon disruptive behavior. At itsconclusion, he was found guilty of the charges and a restricted diet penalty was imposed.The determination was upheld on administrative appeal. Petitioner thereafter commencedthis CPLR article 78 proceeding challenging that determination. Supreme Courtdismissed the petition on the merits in a judgment dated April 1, 2013, finding, amongother things, that petitioner had been properly removed from the hearing and that he hadnot been denied the right to call witnesses. As is relevant here, the court held thatpetitioner had failed to object when a specified inmate was not called as a witnessfollowing that inmate's refusal to testify, as documented in a witness refusal [*2]form. Upon petitioner's motion for reargument, the court,after granting reargument, adhered to its prior decision in a judgment entered October 21,2013. Petitioner now appeals.
To the extent that petitioner raises arguments on this appeal addressed to SupremeCourt's underlying judgment dated April 1, 2013, he did not appeal from that judgment.Moreover, petitioner's notice of appeal was not filed until October 30, 2013 and anyappeal from that earlier judgment would have been untimely (see CPLR 2103 [b][2]; [c]; 5513 [a], [d]; Matter ofBrooks v Connolly, 84 AD3d 1612, 1612 [2011]; Matter of Hannig v McCoy, 4AD3d 685, 686 [2004]).
With regard to the judgment entered October 21, 2013, Supreme Court addressedand rejected the merits of petitioner's reargument motion. Thus, we "deem the court tohave granted reargument and adhered to its prior decision" (Rodriguez v Jacoby &Meyers, LLP, 126 AD3d 1183, 1184 [2015], lv denied 25 NY3d 912[2015]), and the resulting judgment is appealable as of right (see CPLR 5701 [a][2] [viii]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d at 1184-1185).Addressing the merits, we find that the court properly adhered to its prior determinationas it had not overlooked or misapprehended anything when it held that, during the courseof the hearing, petitioner had failed to raise an objection to the witness's refusal to testifyor to the scope of the inquiry into that refusal (see CPLR 2221 [d]). Whilepetitioner's failure to preserve this claim may be attributable to his removal from thehearing, which he did not challenge on his reargument motion, this does not alter theconclusion that the issue is unpreserved, and there is "no discretionary authority orinterest of justice jurisdiction" in proceedings to review administrative determinationspursuant to CPLR article 78 (Matter of Khan v New York State Dept. of Health,96 NY2d 879, 880 [2001]; accord Matter of Russo v Annucci, 130 AD3d 1124,1124-1125 [2015]). To the extent that the motion is styled as one to renew based upon anunsworn affidavit from the inmate in question, it was properly denied as the submissionwould not change the prior determination that petitioner failed to object on this point(see CPLR 2221 [e] [2]; Hyman v Schwartz, 127 AD3d 1281, 1285 [2015]).Petitioner's remaining claims are either unpreserved for our review or lack merit.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed, without costs.