Caroselli v. Duncan

Jan 31, 2002
Versions:290 A.D.2d 908
736 N.Y.S.2d 635
2002 N.Y. App. Div. LEXIS 836

Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered May 11, 2001 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, for failure to state a cause of action.

Following a tier III hearing, petitioner was found guilty of *909violating the prison disciplinary rules prohibiting drug possession, making threats and engaging in violent conduct. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding to challenge the determination of guilt. Supreme Court dismissed the petition finding that petitioner’s procedural arguments failed to state a cause of action. Petitioner appeals, and we affirm.

Petitioner was removed from the hearing room as a result of his disruptive and unruly behavior and therefore failed to raise any of the procedural issues set forth in his petition at a time when remedial action could have been taken. As such, those issues are unpreserved for our review (see, Matter of Stile v Goord, 285 AD2d 693; Matter of Kalwasinski v Senkowski, 244 AD2d 738). In any event, were we to review the issues we would find them to be without merit.

Cardona, P.J., Mercure, Peters, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.