Superintendent hearing in New York

1990Vega v Smith, 66 NY2d 130, 138 ). * Here, two of the three charges, including that on which petitioner was found guilty, warranted penalties in excess of 30 days’ confinement and loss of privileges (rules 116.10 and 118.31) and were punishable in a tier III hearing (7 NYCRR 270.2).

1988Vega v Smith, 66 NY2d 130, 141 ), and that 7 NYCRR 254.5 applies only to witnesses called on the inmate’s behalf (see, Matter of Burnell v Smith, 122 Misc 2d 342, 343 ).

1995With respect to petitioner’s five remaining contentions, petitioner failed to exhaust his administrative remedies regarding three of them by not raising them at the Superintendent’s hearing (see, Matter of Nelson v Coughlin, 188 AD2d 1071 , appeal dismissed 81 NY2d 834), and the others were rendered moot when the determination in the first hearing was reversed and the penalty expunged (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707 ).

1993Petitioner failed to exhaust his administrative remedies with respect to the remainder of his arguments (see, Matter of Nelson v Coughlin, 188 AD2d 1071 ).

1989The petitioner failed to establish that the notice he received more than 24 hours prior to the commencement of the Superintendent’s hearing was inadequate to inform him of the charges against him and to enable him to marshal his evidence and prepare a defense (see, Wolff v McDonnell, 418 US 539, 564 ).

1987The Superintendent’s hearing was conducted in accordance with the minimum requirements of due process (see, Wolff v McDonnell, 418 US 539 ) and was in accord with the regulations promulgated by the Commissioner of the Department of Correctional Services.

1986Although claimant correctly points out that certain administrative proceedings are sufficiently akin to judicial proceedings so as to permit actions for malicious prosecution (see, Groat v Town Bd., 73 AD2d 426) it must be noted that this rule applies to administrative proceedings which provide for a "hearing and trial of the issues on evidence and testimony under oath, with the right of cross-examination” (supra, at p 429).

1986(Broughton v State of New York, 37 NY2d, at p 457 ; cf. Groat v Town Bd., 73 AD2d 426 .) Since neither a disciplinary nor a Superintendent’s hearing is the type of full-scale adversarial hearing which might otherwise be considered sufficiently akin to judicial proceedings to permit an action for malicious prosecution, such action will not lie by reason of the dismissal of charges at either of these administrative hearings (see, Treacy v State of New York, 131 Misc 2d 849 ).

2005An inmate has a fundamental right to be present at a Superintendent’s hearing “unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals” (7 NYCRR 254.6 [a] [2]; see Matter of Alexander v Ricks, 8 AD3d 942, 944 [2004]; Matter of Berrian v Selsky, 306 AD2d 771, 772 [2003], appeal dismissed 100 NY2d 631 [2003], cert denied 543 US 841 [2004]).

2005An inmate has a fundamental right to be present at a Superintendent’s hearing “unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals” (7 NYCRR 254.6 [a] [2]; see Matter of Alexander v Ricks, 8 AD3d 942, 944 [2004]; Matter of Berrian v Selsky, 306 AD2d 771, 772 [2003], appeal dismissed 100 NY2d 631 [2003], cert denied 543 US 841 [2004]).

2000First, petitioner was not confined pending a disciplinary hearing or Superintendent hearing as required by the regulation (see, 7 NYCRR 251-5.1; Matter of Diaz v Coughlin, 134 AD2d 668 ).

2000Second, even if we were to construe the confinement as being related to a pending hearing, it is well settled that the time limitation of this regulation is directory and not mandatory (see, Matter of Covington v Stinson, 221 AD2d 739 , lv denied 87 NY2d 810 ; Matter of Taylor v Coughlin, 135 AD2d 992, 993 ).

2000Co. ( 613 F Supp 1549 [D NJ, mod to vacate and dismiss as against Midland 864 F2d 1033 [3d Cir], supra)-, • Declared that the Highlands policy constitutes an “other” excess policy issued to LAQ prior to the inception date of the Midland policy, as defined in the “Prior Insurance” clause of the Midland policy; • Declared that the “Prior Insurance” clause in the Midland policy operates to reduce the limits of that policy by $17.5 million, an amount that remains due to LAQ under the Highlands policy; • Declared that for purposes of the claim in this matter only, the liability limits of all the Mi

2000Second, even if we were to construe the confinement as being related to a pending hearing, it is well settled that the time limitation of this regulation is directory and not mandatory (see, Matter of Covington v Stinson, 221 AD2d 739 , lv denied 87 NY2d 810 ; Matter of Taylor v Coughlin, 135 AD2d 992, 993 ).

1997In Sandin v Conner ( 515 US 472 [1995]), the United States Supreme Court narrowed the range of a prisoner’s liberty interests that are protectable under the Due Process Clause of the US Constitution 14th Amendment.

1997The Superintendent has broad authority and responsibility to interpret the Insurance Law (see, e.g., Blue Cross & Blue Shield v McCall, 89 NY2d 160, 163 ; Matter of New York Pub.

1996The Superintendent’s analysis finds support both in case law and statute (see, Matter of Landau, 230 App Div 308 ; Timal v Kiamzon, 164 Misc 2d 159 ; City of New York v Britestarr Homes, 150 Mise 2d 820; Recon Car Corp. v Chrysler Corp., 129 Misc 2d 1087 ; Schlesinger v Kaufman, 233 NYS2d 918 ; CPLR 2507; see also, Insurance Law § 1102 [e]; §§ 1115, 1219; arts 13, 14).

1996The Superintendent’s analysis finds support both in case law and statute (see, Matter of Landau, 230 App Div 308 ; Timal v Kiamzon, 164 Misc 2d 159 ; City of New York v Britestarr Homes, 150 Mise 2d 820; Recon Car Corp. v Chrysler Corp., 129 Misc 2d 1087 ; Schlesinger v Kaufman, 233 NYS2d 918 ; CPLR 2507; see also, Insurance Law § 1102 [e]; §§ 1115, 1219; arts 13, 14).

1996However, the failure to provide these documents to petitioner does not require an annulment of the Superintendent’s hearing as it was harmless error in light of the overwhelming evidence of petitioner’s guilt and the fact that petitioner was not seeking the documents to establish a defense and the Hearing Officer did not rely upon them in any manner (see, Matter of Palin v Coughlin, 209 AD2d 970 ; Matter of Giakoumelos v Coughlin, 198 AD2d 744 ).

1996However, the failure to provide these documents to petitioner does not require an annulment of the Superintendent’s hearing as it was harmless error in light of the overwhelming evidence of petitioner’s guilt and the fact that petitioner was not seeking the documents to establish a defense and the Hearing Officer did not rely upon them in any manner (see, Matter of Palin v Coughlin, 209 AD2d 970 ; Matter of Giakoumelos v Coughlin, 198 AD2d 744 ).

1996While petitioner does not raise the issue of substantial evidence, we shall consider his contentions in the interest of judicial economy since Supreme Court has transferred this proceeding to this Court for review (see, Matter of Harris v New York State Div. of Parole, 211 AD2d 205, 206 ).

1996In the circumstances, a determination that petitioners were 'untrustworthy’ is without foundation.” ( 217 AD2d 433 .) This Court granted the Superintendent’s motion and Pater-no’s cross motion for leave to appeal, and we now modify by dismissing the CPLR article 78 petition in its entirety.

1996The Superintendent’s analysis finds support both in case law and statute (see, Matter of Landau, 230 App Div 308 ; Timal v Kiamzon, 164 Misc 2d 159 ; City of New York v Britestarr Homes, 150 Mise 2d 820; Recon Car Corp. v Chrysler Corp., 129 Misc 2d 1087 ; Schlesinger v Kaufman, 233 NYS2d 918 ; CPLR 2507; see also, Insurance Law § 1102 [e]; §§ 1115, 1219; arts 13, 14).

1995With respect to petitioner’s five remaining contentions, petitioner failed to exhaust his administrative remedies regarding three of them by not raising them at the Superintendent’s hearing (see, Matter of Nelson v Coughlin, 188 AD2d 1071 , appeal dismissed 81 NY2d 834), and the others were rendered moot when the determination in the first hearing was reversed and the penalty expunged (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707 ).

1995With respect to petitioner’s five remaining contentions, petitioner failed to exhaust his administrative remedies regarding three of them by not raising them at the Superintendent’s hearing (see, Matter of Nelson v Coughlin, 188 AD2d 1071 , appeal dismissed 81 NY2d 834), and the others were rendered moot when the determination in the first hearing was reversed and the penalty expunged (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707 ).

1994Given the fact that petitioner admitted that he knew that the transaction between his cousin and the investigator involved illegal drugs, we find that respondents’ determination is supported by substantial evidence (see, Matter of McCleary v Mitchell, 188 AD2d 728 ; Matter of Chikeles v LeFevre, 183 AD2d 1081 ).