Boyd v. Fischer — 115 A.D.3d 1099

Majority

p. 1099

In the Matter of Markeith Boyd, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.

[982 NYS2d 406]

Appeal from a judgment of the Supreme Court (Breslin, J.), entered April 4, 2013 in Albany County, which granted respondent’s motion to annul the determination and remit for a new hearing.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating various disciplinary rules. Respondent moved to, among other things, remit the matter for a new hearing given that a substantial portion of the hearing was inaudible and could not be transcribed. Supreme Court granted respondent’s motion. Petitioner now appeals, contending that expungement of the administrative determination, as opposed to remittal, is the appropriate remedy.

We disagree. “[T]he failure to produce a transcript [does] not involve a substantial evidence issue or implicate any fundamental due process rights” (Matter of Auricchio v Goord, 273 AD2d

p. 1100

571 , 572 [2000]). As we find no equitable considerations herein to warrant expungement rather than remittal for a new hearing, Supreme Court’s judgment will not be disturbed (see Matter of Tolliver v Fischer, 105 AD3d 1239 , 1240 [2013]; Matter of Hayes v Fischer, 95 AD3d 1587 , 1588 [2012]; Matter of Auricchio v Goord, 273 AD2d at 572 ).

Lahtinen, J.E, McCarthy, Garry and Rose, JJ., concur.

Ordered that the judgment is affirmed, without costs.

Cases cited

Tolliver v. Fischer 105 AD3d 1239 N.Y. App. Div. 2013-04-18 at 1240 p. 1100
Hayes v. Fischer 95 AD3d 1587 N.Y. App. Div. 2012-05-24 at 1588 p. 1100