Hayes v. Fischer

Appeal from a judgment of the Supreme Court (Reynolds Fitzgerald, J.), entered June 3, 2011 in Chemung County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. Finding that a significant portion of the transcript was missing and that meaningful review was precluded, Supreme Court partially granted the petition by annulling the determination and remitting for a new hearing. Petitioner appeals.

Petitioner's sole contention is that Supreme Court should have ordered expungement instead of a new hearing. We find this claim to be unpersuasive. As this Court has noted, “[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 one of the inmate's fundamental due process rights, as enunciated in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 [1974]; or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing’ ” (Matter of Monko v. Selsky, 246 A.D.2d 699, 700, 667 N.Y.S.2d 480 [1998], quoting Matter of Hillard v. Coughlin, 187 A.D.2d 136, 140, 593 N.Y.S.2d 573 [1993],lv. denied82 N.Y.2d 651, 601 N.Y.S.2d 580, 619 N.E.2d 658 [1993] [citations omitted] ). None of the foregoing concerns are implicated by the missing testimony in the case at hand. Therefore, Supreme Court properly ordered a new hearing ( see Matter of La Van v. New York State Dept. of Correctional Servs., 47 A.D.3d 1153, 850 N.Y.S.2d 285 [2008];Matter of Auricchio v. Goord, 273 A.D.2d 571, 572, 709 N.Y.S.2d 680 [2000];Matter of Monko v. Selsky, 246 A.D.2d at 700, 667 N.Y.S.2d 480).

ORDERED that the judgment is affirmed, without costs.