Opinion
April 28, 1995
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Green, Fallon, Doerr and Balio, JJ.
Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent Superintendent for further proceedings in accordance with the following Memorandum: Because the inmate misbehavior report was authored by an eyewitness to the events alleged in the report and the events are stated in sufficient detail, the report constitutes substantial evidence in support of the determination that petitioner violated two inmate rules (see, Matter of Perez v Wilmot, 67 N.Y.2d 615, 616-617). We conclude, however, that the Hearing Officer erred in directing respondent to pay restitution in an amount fixed by the facility maintenance department. The amount of restitution should be determined at the time of the hearing, thereby establishing a basis for administrative and judicial review (see, Matter of Baker v Wilmot, 65 A.D.2d 884). Because there is substantial evidence to support the guilty determination and because the failure to fix the amount of restitution constitutes a procedural irregularity, we modify the determination by vacating the penalty imposed, and we remit the matter to respondent Superintendent for a further hearing on the amount of damage and restitution (see, Matter of Laureano v Kuhlmann, 75 N.Y.2d 141, 148-149; Matter of Hillard v Coughlin, 187 A.D.2d 136, 140, lv denied 82 N.Y.2d 651; Matter of Dawson v Coughlin, 178 A.D.2d 946; cf., Matter of Hartje v Coughlin, 70 N.Y.2d 866, 868).
By refusing to appear at the hearing, petitioner waived his right to challenge various procedural irregularities, including the alleged failure of respondents to provide employee assistance and conducting the hearing in petitioner's absence (see, Matter of Watson v Coughlin, 72 N.Y.2d 965, affg 132 A.D.2d 831; Matter of Cotton v Coughlin, 167 A.D.2d 584). In addition, by failing to raise those procedural issues on his administrative appeal, petitioner failed to exhaust his administrative remedies (see, Matter of Medina v Coughlin, 202 A.D.2d 1000; Matter of Nelson v Coughlin, 188 A.D.2d 1071, appeal dismissed 81 N.Y.2d 834).