Tumminia v. Selsky

—CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Cayuga County (Corning, J.), entered September 19, 2002, seeking to annul a determination after a Tier III hearing. It is hereby ordered that the determination be and the same hereby is unanimously annulled on the law without costs, the petition is granted in part and the matter is remitted to respondent for a new hearing. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination directing that he be placed in administrative segregation (see 7 NYCRR 301.4 [b]). Respondent concedes that petitioner was denied his right to call witnesses at the Tier III hearing pursuant to 7 NYCRR 254.5 (a) based on the Hearing Officer’s failure to ascertain why several inmates had refused to testify (see Matter of Dawes v Selsky, 286 AD2d 806, 808 [2001]; Matter of Johnson v Goord, 247 AD2d 801, 802 [1998]). We therefore annul the determination, grant the petition in part and remit the matter to respondent for a new hearing (see Matter of Rondon v Selsky, 274 AD2d 713, 714 [2000]; Matter of Blake v Coughlin, 189 AD2d 1016, 1017-1018 [1993]). In view of our determination, we do not address petitioner’s remaining contentions. Present — Pigott, Jr., P.J., Green, Wisner, Burns and Gorski, JJ.