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In Re Thomas Mitchell, Etc v. New York City Department of Correction

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 19, 2012

IN RE THOMAS MITCHELL, ETC.,
PETITIONER-APPELLANT,
v.
NEW YORK CITY DEPARTMENT OF CORRECTION, RESPONDENT-RESPONDENT.

Matter of Matter of Mitchell v New York City Dept. of Correction

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2012

Gonzalez, P.J., Saxe, Sweeny, Acosta, Renwick, JJ.

Judgment, Supreme Court, Bronx County (George R. Villegas, J.), entered on or about August 18, 2010, denying the petition to annul respondent's determination, dated February 22, 2010, which found petitioner guilty of assaulting three corrections officers and imposed a penalty of 90 days in solitary confinement and restitution of $100, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted, the determination annulled, the charges against petitioner dismissed, and respondent directed to expunge all references to the charges from petitioner's institutional records.

The hearing officer failed to provide petitioner with a written statement summarizing the testimony of three witnesses who testified in his favor, and failed to state her reasons for rejecting the testimony of those witnesses and of petitioner, in violation of New York City Department of Correction Directive 6500R-B(III)(C)(38)(d). Respondent is required to comply with its own regulation (see Matter of Bryant v Coughlin, 77 NY2d 642, 647 [1991]).

Respondent waived its defense that petitioner failed to exhaust his administrative remedies by failing to raise the defense in its answer (see Matter of SCS Bus. & Tech. Inst. v Barrios-Paoli, 156 AD2d 288 [1989]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2012

CLERK

20120419

© 1992-2012 VersusLaw Inc.



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