ALLAH, KHALAIRE v. FISCHER, BRIAN

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [774] CA 13-01294 PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ. IN THE MATTER OF KHALAIRE ALLAH, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT. WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF COUNSEL), FOR RESPONDENT-RESPONDENT. Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered February 4, 2013 in a CPLR article 78 proceeding. The judgment dismissed the petition. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination after a tier III hearing that he violated inmate rule 113.26 (7 NYCRR 270.2 [B] [14] [xvi]). On appeal from the judgment dismissing the petition, petitioner contends that the record is insufficient to permit judicial review because respondent failed to provide a copy of recorded conversations between petitioner and a third party. That contention is not properly before us inasmuch as it is raised for the first time on appeal (see Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 232 ) and, in any event, we conclude that it is without merit. Finally, petitioner’s procedural objections, including his due process challenges, are not preserved for our review inasmuch as he did not raise those issues at the hearing (see Matter of Jones v Fischer, 111 AD3d 1362, 1363 ), and he failed to exhaust his administrative remedies with respect to them because he did not raise them on his administrative appeal (see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 , appeal dismissed 81 NY2d 834 ). Entered: June 20, 2014 Frances E. Cafarell Clerk of the Court