Rico v. Fischer, 112 A.D.3d 1249 (N.Y. App. Div. 2013). · Go Syfert
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Rico v. Fischer, 112 A.D.3d 1249 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
5 citation events (5 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Duchnowski v. Annucci (nyappdiv, 2019-02-07)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Duchnowski v. Annucci
N.Y. App. Div. · 2019 · confidence medium
Petitioner's further claim that the Hearing Officer was biased has not been preserved for our review due to his failure to raise it on administrative appeal ( see Matter of Wigfall v New York State Dept. of Corr. & Community Supervision , 160 AD3d 1332 , 1333 [2018]; Matter of Rico v Fischer , 112 AD3d 1249, 1250 [2013]).
discussed Cited as authority (rule) Matter of Harris v. Venettozzi
N.Y. App. Div. · 2018 · confidence medium
Footnotes Footnote 1: Petitioner's claim of inadequate employee assistance is unpreserved for the additional reason that he did not raise it in his administrative appeal ( see Matter of Rico v Fischer , 112 AD3d 1249, 1250 [2013]).
discussed Cited as authority (rule) Matter of Wigfall v. New York State Dept. of Corr. & Community Supervision
N.Y. App. Div. · 2018 · confidence medium
Petitioner's contention that the Hearing Officer was biased is not preserved for our review due to his failure to raise it on administrative appeal ( see Matter of Sandy v Venettozzi , 134 AD3d 1346, 1347 [2015], lv [*2]denied 27 NY3d 904 [2016]; Matter of Rico v Fischer , 112 AD3d 1249, 1250 [2013]).
discussed Cited as authority (rule) Matter of Wilson v. Venettozzi
N.Y. App. Div. · 2018 · confidence medium
To the extent that petitioner asserts that he was denied certain witnesses, he raises such issue for the first time before this Court and, therefore, it is unpreserved for our [*2]review ( see Matter of Rico v Fischer , 112 AD3d 1249, 1250 [2013]; Matter of Toro v Fischer , 104 AD3d 1036, 1037 [2013]).
discussed Cited "see" Matter of Jackson v. Annucci
N.Y. App. Div. · 2018 · signal: see · confidence high
Although he argued that he refused the order because the facility dress code does not require the type of shirt he was wearing to be tucked in, "he was not entitled to engage in demonstrations or other forms of self-help, nor was he entitled on this basis to refuse to obey direct orders" ( Matter of Amaker v Bezio , 98 AD3d 1146, 1146-1147 [2012] [internal citation omitted]; see Matter of Rico v Fischer , 112 AD3d 1249, 1249-1250 [2013]).
Retrieving the full opinion text from the archive…
In the Matter of Michael Rico
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Dec 26, 2013.
112 A.D.3d 1249
Cited by 5 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.

While refusing a correction officer’s request to provide a urine specimen, petitioner displayed his middle finger and used profanity. As a result, he was charged in a misbehavior report with refusing a direct order, failing to comply with urinalysis testing procedures and harassment. Petitioner was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report and testimony of the correction officer who authored it, supports the determination of guilt (see Matter of Sital v Fischer, 72 AD3d 1306, 1307 [2010], lv dismissed 15 NY3d 823 [2010]; Matter of Spulka v Selsky, 36 AD3d 1183, 1184 [2007]). Petitioner contends that the officer did not follow the proper protocol by escorting him to “the facility infirmary, clinic or[*1250] other appropriate area” for purposes of obtaining the urine specimen (7 NYCRR 1020.4 [d] [1]). This, however, does not relieve petitioner of his obligation to comply with the officer’s directive (see Matter of Billue v Goord, 28 AD3d 845, 846 [2006]) and any problem he had with it should have been pursued through the grievance procedure (see Matter of Amaker v Bezio, 98 AD3d 1146, 1147 n [2012]). Petitioner’s claims that he was improperly denied witnesses and documentary evidence and that the Hearing Officer was biased have not been preserved for our review due to his failure to raise them in his administrative appeal (see Matter of Ventimiglia v New York State Dept. of Correctional Servs., 94 AD3d 1327, 1328 [2012]; Matter of Perez v Fischer, 62 AD3d 1104, 1105 [2009]; Matter of Lee v Goord, 285 AD2d 716, 716 [2001]).

Rose, J.P, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.