Opinion
December 18, 1989
Appeal from the Supreme Court, Dutchess County (Bernhard, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
Pursuant to 7 NYCRR 251-5.1 (a), the appellants were required to commence the Superintendent's proceeding within seven days of the petitioner's incarceration in a special housing unit. As it is undisputed that the petitioner was continuously confined to a special housing unit from May 23, 1988, first at the Ossining Correctional Facility and then at the Green Haven Correctional Facility, and that a disciplinary hearing was not commenced until May 31, 1988, the determination must be annulled and all references to the Superintendent's proceeding in the petitioner's institutional record must be expunged (see, Matter of Hawkins v Scully, 146 A.D.2d 627; Matter of Brito v Sullivan, 141 A.D.2d 819; Matter of Coley v Sullivan, 126 A.D.2d 641; People ex rel. De Fulmer v Scully, 110 A.D.2d 671; Matter of Lozada v Scully, 108 A.D.2d 859).
We reject the appellants' argument that the petitioner knowingly waived his right to object to the timeliness of the proceeding (see, Matter of Garcia v LeFevre, 64 N.Y.2d 1001). In this regard, we note that he immediately raised the issue of timeliness in his administrative appeal. Sullivan, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.