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In the Matter of Louis Barone v. Albert Prack

State of New York Supreme Court, Appellate Division Third Judicial Department


February 2, 2012

IN THE MATTER OF LOUIS BARONE, PETITIONER,
v.
ALBERT PRACK, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was directed to provide a urine specimen for testing, but failed to do so after he was given three glasses of water over a three-hour period. As a result, he was charged in a misbehavior report with refusing a direct order and violating urinalysis testing procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.*fn1

Petitioner's defense to the charges was that certain medication prescribed by his physician caused him to have difficulty urinating and rendered him incapable of providing a urine specimen. His sole contention in the instant proceeding is that he was improperly denied the right to call his physician to testify to this effect at the hearing. Based upon our review of the record, we agree. The only medical witness to testify at the hearing was the facility nurse administrator who acknowledged that difficulty urinating was a side effect of the medication, but noted that petitioner's medical records did not reveal that he had made such a complaint until after the misbehavior report was written. It is clear from her testimony, however, that she was not personally familiar with petitioner's medical condition or the medication he was taking, and her knowledge of the side effects of the medication was gleaned from reading the package insert. On this record, we are not convinced that the nurse administrator was qualified to provide a medical opinion or that the physician's testimony would have been redundant (see Matter of Townes v Fischer, 68 AD3d 1294, 1295 [2009]). Therefore, the determination must be annulled and the matter remitted for further proceedings.

Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur.

ADJUDGED that the determination is annulled, without costs, petition granted, and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court


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