Zaro v. Coughlin

Judgment unanimously affirmed. Memorandum: Petitioner contends that the Hearing Officer failed to assess his "retaliation” defense in a fair and impartial manner. We disagree. The record reveals that petitioner was allowed to offer documentary and testimonial evidence in support of his defense (cf., Matter of Wilson v Coughlin, 186 AD2d 1090), and the fact that the Hearing Officer rejected the defense does not constitute a violation of due process. Petitioner also asserts that the rule governing administrative appeals from disciplinary hearings fails to give adequate notice of those review procedures. Because petitioner challenges the constitutionality of the rule, his contention may be raised for the first time in a judicial proceeding (see, Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375). Nevertheless, because he failed to assert the contention in his CPLR article 78 petition, we do not consider it (see, Lang v Cohalan, 127 AD2d 17, 21, appeal dismissed 70 NY2d 744). (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.—Article 78.) Present—Denman, P. J., Pine, Balio, Doerr and Davis, JJ.