Opinion
1120 TP 18–00969
11-16-2018
In the Matter of Merrin DISTEFANO, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
MERRIN DISTEFANO, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF COUNSEL), FOR RESPONDENT.
MERRIN DISTEFANO, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determinations are unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a series of five determinations, after tier II and tier III hearings, that she violated several inmate rules arising from several incidents. The record establishes that this proceeding was untimely inasmuch as it was commenced more than four months after each of the final administrative determinations in this matter (see CPLR 217[1] ; Matter of Jackson v. Fischer, 78 A.D.3d 1335, 1335, 909 N.Y.S.2d 681 [3d Dept. 2010], lv denied 16 N.Y.3d 705, 2011 WL 536609 [2011] ). Furthermore, even assuming, arguendo, that this proceeding was timely commenced with respect to the fifth determination, we reject petitioner's contention that the determination is not supported by substantial evidence. The misbehavior report, together with the testimony of the correction officer who witnessed the incident, "constitutes substantial evidence supporting the determination that petitioner violated [the applicable] inmate rule[s]" ( Matter of Oliver v. Fischer, 82 A.D.3d 1648, 1648, 919 N.Y.S.2d 432 [4th Dept. 2011] ; see Matter of Jones v. Annucci, 141 A.D.3d 1108, 1108–1109, 33 N.Y.S.3d 807 [4th Dept. 2016] ). Petitioner's denial of the reported misbehavior merely raised an issue of credibility for the Hearing Officer (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ).
We have considered petitioner's remaining contentions and conclude that they do not require a different result.