Abrams v. Fischer, 109 A.D.3d 1030 (N.Y. App. Div. 2013). · Go Syfert
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Abrams v. Fischer, 109 A.D.3d 1030 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
26 citation events (26 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Diaz v. Lee (nyappdiv, 2019-04-18)
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Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Diaz v. Lee
N.Y. App. Div. · 2019 · confidence medium
Preliminarily, petitioner's procedural claims — that the misbehavior report failed to comply with the requirements of 7 NYCRR 251-3.1 (b), that such report did not afford him sufficient notice of the charges against him and that he otherwise was deprived of due process — are unpreserved for our review due to petitioner's failure to register appropriate objections at the disciplinary hearing ( see Matter of Jones v Annucci , 166 AD3d 1174 , 1176 [2018]; Matter of Soto v Central Off, Review Comm. of the Dept. of Corrections & Community Supervision , 118 AD3d 1229 , 1230 [2014]; Matter of Abr…
discussed Cited as authority (rule) Matter of Harris v. Venettozzi
N.Y. App. Div. · 2018 · confidence medium
Inasmuch as petitioner did not request any documentary evidence at the hearing or object to his assistant's failure to produce the same, he has not preserved these claims for judicial review ( see Matter of Rodriguez v Annucci , 136 AD3d 1083 , [*2]1084 [2016]; Matter of Abrams v Fischer , 109 AD3d 1030, 1031 [2013]) [FN1] .
discussed Cited as authority (rule) Matter of Burroughs v. Annucci
N.Y. App. Div. · 2018 · confidence medium
Thus, this issue is unpreserved for our review ( see Matter of Ayuso v Venettozzi , 159 AD3d 1208 , 1209 [2018]; Matter of McDay v Annucci , 156 AD3d 1082, 1083 [2017]; Matter of Abrams v Fischer , 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Matter of McDay v. Annucci
N.Y. App. Div. · 2017 · confidence medium
Petitioner’s remaining contentions, including his right to present evidence and challenges to his employee assistance, are unpreserved for our review as they were not raised at the hearing when they could have been addressed (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Miller v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
Because petitioner’s assertion regarding whether his cell was searched before he moved into it and his challenge to the sufficiency of the misbehavior report were not raised at the hearing when they could have been addressed, those contentions are not preserved for our review (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Miller v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
Because petitioner’s assertion regarding whether his cell was searched before he moved into it and his challenge to the sufficiency of the misbehavior report were not raised at the hearing when they could have been addressed, those contentions are not preserved for our review (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Miller v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
Because petitioner’s assertion regarding whether his cell was searched before he moved into it and his challenge to the sufficiency of the misbehavior report were not raised at the hearing when they could have been addressed, those contentions are not preserved for our review (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Matter of Safford v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Contrary to petitioner’s contention, the record reflects that the hearing was conducted in a fair, deliberative and impartial *1273 manner; it contains no support for his claim that the Hearing Officer was biased, and we find that the determination of guilt flowed from the substantial evidence adduced at the hearing rather than from any alleged bias (see Matter of Allen v Venettozzi, 139 AD3d 1208, 1209 [2016], lv denied 28 NY3d 903 [2016]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Rodriguez v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Petitioner’s remaining contentions, including that he was denied both adequate employee assistance and the right to present documentary evidence, are unpreserved as they were not raised at the hearing (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013] ).
discussed Cited as authority (rule) Rodriguez v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Petitioner’s remaining contentions, including that he was denied both adequate employee assistance and the right to present documentary evidence, are unpreserved as they were not raised at the hearing (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013] ).
discussed Cited as authority (rule) Matter of Medina v. Venettozzi
N.Y. App. Div. · 2015 · confidence medium
Petitioner’s remaining contentions, including that he was denied the assistant of his choice and that the Hearing Officer improperly denied him access to the confidential mental health testimony, are unpreserved for our review given his failure to raise them at the hearing (see Matter of Robinson v Annucci, 122 AD3d 981 , 982 *1483 [2014]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Robinson v. Annucci
N.Y. App. Div. · 2014 · confidence medium
Petitioner failed to preserve his procedural objections, namely, that the misbehavior report was deficient and that he was denied the right to call a witness, by his failure to raise these issues at the hearing (see Matter of Amato v Fischer, 115 AD3d 1100, 1101 [2014]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) MatterofRobinsonvAnnucci
N.Y. App. Div. · 2014 · confidence medium
Petitioner failed to preserve his procedural objections, namely, that the misbehavior report was deficient and that he was denied the right to call a witness, by his failure to raise these issues at the hearing (see Matter of Amato v Fischer, 115 AD3d 1100, 1101 [2014]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Robinson v. Annucci
N.Y. App. Div. · 2014 · confidence medium
Petitioner failed to preserve his procedural objections, namely, that the misbehavior report was deficient and that he was denied the right to call a witness, by his failure to raise these issues at the hearing (see Matter of Amato v Fischer, 115 AD3d 1100, 1101 [2014]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Maletta v. Amoia
N.Y. App. Div. · 2014 · confidence medium
Contrary to petitioner’s argument, the record reveals that the finding of guilt emanated from the overwhelming evidence in the record, rather than from any alleged hearing officer bias (see Matter of Fero v Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) MatterofMalettavAmoia
N.Y. App. Div. · 2014 · confidence medium
Contrary to petitioner's argument, the record reveals that the finding of guilt emanated from the overwhelming evidence in the record, rather than from any alleged hearing officer bias (see Matter of Fero v Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Maletta v. Amoia
N.Y. App. Div. · 2014 · confidence medium
Contrary to petitioner’s argument, the record reveals that the finding of guilt emanated from the overwhelming evidence in the record, rather than from any alleged hearing officer bias (see Matter of Fero v Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Bush v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Our review of the record reveals that the finding of guilt was based upon the evidence in the record rather than any alleged hearing officer bias (see Matter of Fero v Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) Bush v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Our review of the record reveals that the finding of guilt was based upon the evidence in the record rather than any alleged hearing officer bias (see Matter of Fero v Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) MatterofBushvFischer
N.Y. App. Div. · 2014 · confidence medium
Our review of the record reveals that the finding of guilt was based upon the evidence in the record rather than any alleged hearing officer bias (see Matter of Fero v Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
discussed Cited as authority (rule) MatterofRobinsonvPrack
N.Y. App. Div. · 2014 · confidence medium
Finally, petitioner's claim that he was not provided adequate employee assistance is unpreserved for our review, inasmuch as he did not raise it at the hearing (see Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]; Matter of Fordham v Lee, 96 AD3d 1243 , 1243- 1244 [2013]) and in his administrative appeal (see Matter of Cagle v Fischer, 108 AD3d 913, 913 [2013]; Matter of Harris v Selsky, 9 AD3d 695, 696 [2004]).
discussed Cited as authority (rule) Robinson v. Prack
N.Y. App. Div. · 2014 · confidence medium
Finally, petitioner’s claim that he was not provided adequate employee assistance is unpreserved for our review, inasmuch as he did not raise it at the hearing (see Abrams v Fischer, 109 AD3d 1030, 1031 [2013]; Matter of Fordham v Lee, 96 AD3d 1243, 1243-1244 [2012]) and in his administrative appeal (see Matter of Cagle v Fischer, 108 AD3d 913, 913 [2013]; Matter of Harris v Selsky, 9 AD3d 695, 696 [2004]).
discussed Cited as authority (rule) Robinson v. Prack
N.Y. App. Div. · 2014 · confidence medium
Finally, petitioner’s claim that he was not provided adequate employee assistance is unpreserved for our review, inasmuch as he did not raise it at the hearing (see Abrams v Fischer, 109 AD3d 1030, 1031 [2013]; Matter of Fordham v Lee, 96 AD3d 1243, 1243-1244 [2012]) and in his administrative appeal (see Matter of Cagle v Fischer, 108 AD3d 913, 913 [2013]; Matter of Harris v Selsky, 9 AD3d 695, 696 [2004]).
discussed Cited as authority (rule) Fulmore v. Prack
N.Y. App. Div. · 2014 · confidence medium
Petitioner’s claims that the charges were fabricated and that the officer’s testimony was inherently unbelievable raised credibility questions for the Hearing Officer to resolve (see Abrams v Fischer, 109 AD3d 1030, 1031 [2013]; Matter of Suero v Fischer, 95 AD3d 1509, 1509-1510 [2012]).
discussed Cited as authority (rule) Fulmore v. Prack
N.Y. App. Div. · 2014 · confidence medium
Petitioner’s claims that the charges were fabricated and that the officer’s testimony was inherently unbelievable raised credibility questions for the Hearing Officer to resolve (see Abrams v Fischer, 109 AD3d 1030, 1031 [2013]; Matter of Suero v Fischer, 95 AD3d 1509, 1509-1510 [2012]).
Retrieving the full opinion text from the archive…
Emar Abrams
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Sep 19, 2013.
109 A.D.3d 1030
Cited by 25 opinions  |  Published

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After petitioner, a prison inmate, was observed by several correction officers speaking at a service of the Nation of Islam and encouraging attendees to organize with other groups to take action against the facility and its staff, he was served with a misbehavior report charging him with rioting and demonstration. Following a tier III disciplinary hearing, he was found[*1031] guilty of demonstration and that determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding to challenge the determination.

We confirm. To the extent that petitioner challenges the evidence against him, the misbehavior report and the testimony of the three correction officers who heard petitioner’s statements constitute substantial evidence to support the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied — NY3d —, 2013 NY Slip Op 84879 [2013]; Matter of Williams v Fischer, 102 AD3d 1044, 1044 [2013]). Petitioner’s contention that the charges were fabricated in retaliation for grievances he had filed against the officers raised a credibility issue to be resolved by the Hearing Officer (see Matter of Sanchez v Fischer, 106 AD3d 1361, 1361 [2013]; Matter of Tuitt v Martuscello, 106 AD3d 1355, 1356 [2013], lv denied 21 NY3d 865 [2013]).

Petitioner’s contentions that he received ineffective employee assistance, he was denied documentary evidence, the misbehavior report failed to sufficiently apprise him of the charges, and the hearing was untimely commenced and completed are unpreserved by his failure to adequately and timely raise these arguments during the hearing when they could have been addressed (see Matter of Argentina v Fischer, 98 AD3d 768, 768-769 [2012]; Matter of Morales v Fischer, 89 AD3d 1346, 1346-1347 [2011]; Matter of Hernandez v Bezio, 76 AD3d 1148, 1148-1149 [2010]). Finally, our review of the record reveals that the finding of guilt did not result from hearing officer bias but, rather, was based on the substantial evidence elicited during the hearing (see Matter of Colon v Fischer, 98 AD3d 1176, 1177 [2012], lv denied 20 NY3d 857 [2013]; Matter of Rodriguez v Fischer, 96 AD3d 1333, 1333 [2012]). Petitioner’s remaining contentions have been examined and found to be without merit.

Stein, J.E, McCarthy, Spain and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.