Howard v. Kelly — 115 A.D.2d 1011

Majority

p. 1011

In the Matter of Clifford Howard, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants.

Judgment unanimously reversed, on the law, and petition dismissed. Memorandum: Petitioner waived his right to challenge the legality of a Superintendent’s proceeding by refusing to attend the hearing (Matter of Payne v Smith, 97 AD2d 960 ; see also, Matter of Morrison v Coughlin, 101 AD2d 943 , 944, lv denied 63 NY2d 605 ; People ex rel. Morgan v La Vallee, 49 AD2d 652 , lv denied 37 NY2d 710 ). In any event, petitioner’s claim that a written misbehavior report did not constitute substantial evidence in support of the determination is without merit (see, Matter of Semper v Smith, 66 NY2d 130 ). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J.—art 78.) Present—Dillon, P. J., Denman, Green, O’Donnell and Schnepp, JJ.

Cases cited

Payne v. Smith 97 AD2d 960 N.Y. App. Div. 1983-11-04 p. 1011
Morrison v. Coughlin 101 AD2d 943 N.Y. App. Div. 1984-05-17 at 944 p. 1011
People ex rel. Vega v. Smith 66 NY2d 130 N.Y. 1985-10-15 p. 1011