Matter of Tafari v Selsky

Matter of Tafari v Selsky 2015 NY Slip Op 08230 Decided on November 12, 2015 Appellate Division, Third Department 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 and Entered: November 12, 2015
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[*1]In the Matter of INJAH TAFARI, Appellant,

v

DONALD SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: September 22, 2015
Before: Peters, P.J., McCarthy, Egan Jr. and Clark, JJ.

Injah Tafari, Elmira, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cahill, J.), entered January 8, 2015 in Ulster County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion for reconsideration.

When this case was initially before this Court, we affirmed the judgment dismissing the petition that sought to annul a tier III disciplinary determination finding petitioner guilty of violating several prison disciplinary rules (38 AD3d 1031 [2007]). Thereafter, this Court affirmed the judgment that denied petitioner's motion for reconsideration based upon the existence of alleged newly discovered evidence regarding a visitors log that supported his assertions that he was denied adequate employee assistance in connection with his disciplinary hearing and his waiver of the right to call witnesses during the

hearing was not voluntary (58 AD3d 1094 [2009], lv dismissed 12 NY3d 812 [2009]). Petitioner, again, moved for reconsideration based upon alleged newly discovered evidence of an eyewitness to the disciplinary incident. Supreme Court denied the motion and this appeal ensued.

Initially, we note that, because the motion is based solely on newly discovered evidence, it is a motion for renewal and not, as characterized by Supreme Court, a motion for reargument (see CPLR 2221 [d], [e]). Assuming that the alleged eyewitness affidavit is new evidence, that evidence would not have led to a different outcome (see 58 AD3d at 1095). As such, denial of the motion was appropriate.

Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.