Hayes v. Fischer

1588 Appeal from a judgment of the Supreme Court (Reynolds Fitzgerald, J.), entered June 3, 2011 in Chemung County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules. Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. Finding that a significant portion of the transcript was missing and that meaningful review was precluded, Supreme Court partially granted the petition by annulling the determination and remitting for a new hearing. Petitioner appeals. Petitioner’s sole contention is that Supreme Court should have ordered expungement instead of a new hearing. We find this claim to be unpersuasive. As this Court has noted, ‘ ‘ [ejxpungement will be ordered only where there has been a showing that ‘(1) the challenged disciplinary determination is not supported by substantial evidence . . . ; (2) there has been a violation of one of the inmate’s fundamental due process rights, as enunciated in Wolff v McDonnell (418 US 539 . . .); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing’ ” (Matter of Monko v Selsky, 246 AD2d 699, 700 [1998], quoting Matter of Hillard v Coughlin, 187 AD2d 136, 140 [1993], lv denied 82 NY2d 651 [1993] [citations omitted]). None of the foregoing concerns are implicated by the missing testimony in the case at hand. Therefore, Supreme Court properly ordered a new hearing (see Matter of La Van v New York State Dept. of Correctional Servs., 47 AD3d 1153 [2008]; Matter of Auricchio v Goord, 273 AD2d 571, 572 [2000]; Matter of Monko v Selsky, 246 AD2d at 700). Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.