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noting that, having denied coverage, the insurer "assumed the risk" of a judgment against its insured and "may not now . . . go behind the underlying . . . judgment . . . to raise defenses extending to the merits of [the insured's] claim"
Summary of this case from Kvaerner N. Am. Constr. Inc. v. Certain Underwriters At Lloyd's London Subscribing to Policy No. 509/DL486507Opinion
March 26, 1992
Appeal from the Supreme Court, Ulster County.
Petitioner, an inmate at Shawangunk Correctional Facility in Ulster County, was subjected to routine urinalysis testing following his participation in the family reunion program (see, 7 NYCRR 1020.4 [a] [2] [ii]). Based upon the results of this testing, petitioner was charged with violating the disciplinary rule which prohibits the unauthorized use of any controlled substance. Following a hearing petitioner was found guilty of the charge, and he commenced this CPLR article 78 proceeding to review the determination after it was administratively affirmed.
Petitioner's argument directed at the reliability of the EMIT test procedure which yielded positive results for cocaine in his urine is meritless (see, Matter of Lahey v Kelly, 71 N.Y.2d 135). The documentary evidence presented at the hearing was sufficient to substantiate the required chain of custody (see, Matter of Berrios v Kuhlmann, 143 A.D.2d 475, 477), and the evidence in the record refutes petitioner's claim that he was denied the effective assistance of an employee assistant. We have considered petitioner's other arguments and find them to be lacking in merit. The determination is supported by substantial evidence (see, Matter of Lahey v Kelly, supra, at 140) and it must, therefore, be confirmed.
Mikoll, J.P., Yesawich Jr., Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.