At page 990 Determining appropriate remedy for unsupported disciplinary determination10 citing cases“It is well settled that “[e]xpungement will be ordered only where there has been a showing that ‘(1) the challenged disciplinary determination is not supported by substantial evidence . . . ; (2) there has been a violation of”
- Matter of Hill v. State Univ. of N.Y. At Buffalo, 2018 NY Slip Op 5104 (N.Y. App. Div. 4th Dep't 2018).publishedAnnulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence ( see Matter of Barnes v Fischer , 108 AD3d 990, 990 [3d Dept 2013], lv denied 22 NY3d 855 [2013]), and it w…
- Matter of Hughes v. Annucci, 156 A.D.3d 1032 (N.Y. App. Div. 3d Dep't 2017).publishedTherefore, the determination must be annulled and the matter remitted for a new hearing (see Matter of Caldwell v Annucci, 140 AD3d 1248, 1248-1249 [2016]; Matter of Barnes v Fischer, 108 AD3d 990, 990-991 [2013], lv denied 22 NY3d 855 [20…
- Matter of Caldwell v. Annucci, 140 A.D.3d 1248 (N.Y. App. Div. 3d Dep't 2016).publishedWe note that, under the circumstances, expungement is not the appropriate remedy (see Matter of Hamlett v Kelley, 133 AD3d at 992-993 ; Matter of Barnes v Fischer, 108 AD3d 990, 990-991 [2013], lv denied 22 NY3d 855 [2013]; Matter of Hayes…
- Shoga v. Annucci, 132 A.D.3d 1338 (N.Y. App. Div. 4th Dep't 2015).published We therefore conclude that the determination must be annulled, and we remit the matter to respondent for a new hearing (see generally Matter of Nova v Fischer, 112 AD3d 1234 , 1234 [2013], lv denied 22 NY3d 866 [2014]; Matter of Barnes v F…
- Nova v. Fischer, 112 A.D.3d 1234 (N.Y. App. Div. 3d Dep't 2013).published We agree with Supreme Court that remittal for a new hearing is the proper remedy in this circumstance, rather than expungement of the disciplinary determination (see Matter of Barnes v Fischer, 108 AD3d 990, 990-991 [2013]; Matter of Hayes…
- Matter of Hamlett v. Kelley, 133 A.D.3d 992 (N.Y. App. Div. 3d Dep't 2015).publishedBecause “the failure to produce a transcript did not involve a substantial evidence issue or implicate any fundamental due process rights” (Matter of Jones v Fischer, 110 AD3d 1295 , 1296 [2013], appeal dismissed 23 NY3d 955 [2014] [intern…
- Sims v. Russo, 148 A.D.3d 1409 (N.Y. App. Div. 3d Dep't 2017).published Under the circumstances, a new hearing is the appropriate remedy (see Matter of Hamlett v Kelley, 133 AD3d 992, 993 [2015]; Matter of Tolliver v Fischer, 125 AD3d at 1024 ; see also Matter of Barnes v Fischer, 108 AD3d 990, 990-991 [2013],…
Other citing cases
- Matter of Wingate v. Martuscello, 2025 NY Slip Op 07048 (N.Y. App. Div. 3d Dep't 2025).published
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appeal from a judgment of the Supreme Court (Cahill, J.), entered August 9, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondent’s motion to annul his determination and remit for a new hearing.
In October 2011, petitioner was found guilty of violent conduct, assault on an inmate, possessing a weapon and engaging in gang activity following a tier III disciplinary hearing. He thereafter commenced this CPLR article 78 proceeding challenging that determination. After being informed that only a partial recording of the disciplinary hearing could be located, respondent moved to annul the determination and have the matter remitted for a new hearing. Petitioner cross-moved to dismiss and have the determination expunged from his institutional record. Supreme Court thereafter granted respondent’s motion, annulling the challenged determination and remitting the matter for a new disciplinary hearing. Based upon this determination, the court denied petitioner’s cross motion as moot and dismissed the petition. Petitioner appeals.
We affirm. Petitioner’s sole contention on appeal is that Supreme Court should have ordered expungement of the disciplinary determination from his prison record instead of a new hearing. We disagree. It is well settled that “[e]xpungement will be ordered only where there has been a showing that ‘(1) the challenged disciplinary determination is not supported by substantial evidence . . . ; (2) there has been a violation of[*991] one of the inmate’s fundamental due process rights, as enunciated in Wolff v McDonnell (418 US 539 . . . ); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing’ ” (Matter of Monko v Selsky, 246 AD2d 699, 700 [1998], quoting Matter of Hillard v Coughlin, 187 AD2d 136, 140 [1993], lv denied 82 NY2d 651 [1993]; accord Matter of Hayes v Fischer, 95 AD3d 1587, 1588 [2012]). None of the foregoing situations is implicated here. Accordingly, Supreme Court properly ordered a new hearing (see Matter of Hayes v Fischer, 95 AD3d at 1588; Matter of Auricchio v Goord, 273 AD2d 571, 572 [2000]; Matter of Monko v Selsky, 246 AD2d at 700).
Peters, P.J., Lahtinen, Spain and Garry, JJ, concur. Ordered that the judgment is affirmed, without costs.