Hernandez v. Fischer, 111 A.D.3d 1042 (N.Y. App. Div. 2013). · Go Syfert
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Hernandez v. Fischer, 111 A.D.3d 1042 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
10 citation events (10 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Canzater-Smith v. Venettozzi (nyappdiv, 2017-05-18)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Canzater-Smith v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
Moreover, by providing petitioner with a redacted copy of the unusual incident report and logbook entries, the Hearing Officer sufficiently remedied any alleged deficiencies in the assistance received (see Matter of Telesford v Annucci, 145 AD3d 1304, 1305 [2016]; Matter of Hernandez v Fischer, 111 AD3d 1042, 1043 [2013]).
discussed Cited as authority (rule) Matter of Telesford v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Petitioner was provided with those documents that were relevant and available, and any deficiencies in assistance were remedied by the Hearing Officer who read into the record the unusual incident report, use of force report and related documentation (see Matter of Hernandez v Fischer, 111 AD3d 1042, 1043 [2013]; Matter of Phelps v Fischer, 108 AD3d 1003 , 1004 [2013], appeal dismissed 22 NY3d 1046 [2014]).
discussed Cited as authority (rule) Matter of Safford v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Petitioner was repeatedly offered the opportunity to attend and informed that the hearing would proceed in his absence and, thus, his refusal constituted a waiver of his right to be present as well as any procedural challenges to the remainder of the hearing (see Matter of Hernandez v Fischer, 111 AD3d 1042, 1043 [2013]; Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433-1434 [2011]).
discussed Cited as authority (rule) Matter of Jones v. Fischer
N.Y. App. Div. · 2016 · confidence medium
A review of the record reflects that petitioner was provided with all of the documents that were relevant to the charge of drug use, excluding only those that were immaterial to the charge or not available and those whose disclosure would jeopardize institutional safety, and he was afforded ample adjournments, curing any potential prejudice (see Matter of Castillo v Fischer, 120 AD3d 1493, 1493 [2014]; Matter of Hernandez v Fischer, 111 AD3d 1042, 1043 [2013]).
Retrieving the full opinion text from the archive…
In the Matter of Frankie Hernandez
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Nov 14, 2013.
111 A.D.3d 1042
Cited by 8 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 certain prison disciplinary rules.

After petitioner’s urine twice tested positive for cannabinoid[*1043] and. cocaine, he was charged in a misbehavior report with drug use. At the conclusion of a tier III disciplinary hearing, the Hearing Officer found petitioner guilty of the charge. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.*

Initially, contrary to petitioner’s contentions, our review of the record confirms that petitioner received adequate employee assistance. Although the assistant did not provide petitioner with a copy of each document requested, petitioner was provided with those documents that were relevant and available. Moreover, the Hearing Officer discussed each of petitioner’s requests with petitioner to ensure that he had received all of the documents and information to which he was entitled (see Matter of Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]; Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]). Nor are we convinced that petitioner improperly was denied the right to be present at his disciplinary hearing. Upon learning that petitioner claimed to be suffering from back pain and that he refused to attend the remainder of the hearing, the Hearing Officer took testimony from a sergeant who indicated that petitioner went to the shower that day without any apparent difficulty. The Hearing Officer also took testimony from the nurse on duty at the time of the hearing, who stated that, upon review of petitioner’s medical records, it appeared that he had ongoing complaints of back pain, had received a sick call that morning and had been able to stand during the sick call. Based upon the record, we will not disturb the Hearing Officer’s determination that petitioner willfully refused to attend the hearing (see Matter of Watson v Fischer, 98 AD3d 1171, 1172 [2012]; Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433 [2011]).

Rose, J.E, Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although this proceeding appears to have been improperly transferred to this Court, as the petition raises only procedural issues, we will retain jurisdiction in the interest of judicial economy (see Matter of Dillard v Fischer, 98 AD3d 761, 761 n [2012]; Matter of Brown v Venettozzi, 79 AD3d 1510, 1511 n [2010]).