Berner v. Goord

Mercure, J. P. Appeal from a judgment of the Supreme Court (Torraca, J.), entered September 3, 1997 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition. Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules prohibiting harassment and solicitation of services from someone other than a family member without approval. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding claiming that his due process rights were violated because he was not served with a copy of the misbehavior report at least 24 hours prior to the commencement of the hearing. Concluding that petitioner’s due process argument was unpreserved, Supreme Court granted respondents’ motion to dismiss the petition. Petitioner appeals. We affirm. Any challenges pertaining to the timely service of the misbehavior report were waived by petitioner’s failure to raise them on administrative review (see, Matter of Walton v Selsky, 251 AD2d 798, 799; Matter of Lugo v Jones, 167 AD2d [882] 636). Petitioner’s proffered excuses for failing to raise such issues on administrative appeal have been reviewed and found to be unpersuasive. Accordingly, we conclude that Supreme Court properly dismissed the petition. Crew III, Yesawich Jr., Peters and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.