Matter of Hassan v New York City Dept. of Corr.

Matter of Hassan v New York City Dept. of Corr. 2013 NY Slip Op 02686 Decided on April 23, 2013 Appellate Division, First 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 on April 23, 2013
Gonzalez, P.J., Mazzarelli, Moskowitz, Renwick, Manzanet-Daniels, JJ.
9859 250389/11

[*1]In re Walid Hassan, etc., Petitioner-Appellant,

v

New York City Department of Correction, et al., Respondents-Respondents.




Carol L. Kahn, New York, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Suzanne
K. Colt of counsel), for respondents.

Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about June 27, 2011, denying the petition seeking to annul a determination of respondent New York City Department of Correction (DOC), dated on or about March 24, 2010, which found petitioner guilty of disrespect to staff and refusal to obey a direct order, and imposed penalties, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court for further proceedings consistent with this decision.

On appeal, petitioner does not contest that the determination is supported by substantial evidence. Rather, he argues that the record before the Supreme Court was incomplete because it lacked a record of the disciplinary hearing, respondent's answer, and a written statement by Correction Officer Stevens, which the Hearing Officer was required to show petitioner pursuant to DOC Directive 6500R-B(III)(C)(25) and (26). We agree. Further, it cannot be determined on this record whether the Hearing Officer's failure to show petitioner the written statement by Correction Officer Stevens prejudiced petitioner's defense (see Matter of Caldwell v Rock, 93 AD3d 1048 [3d Dept 2012]; cf. Matter of Brown v New York City Dept. of Correction, 288 AD2d 162, 163 [1st Dept 2001]). Accordingly, we remand for respondent to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement
by Correction Officer Stevens (see Matter of Ghiazza v Putnam County Dept. of Consumer [*2]Affairs, 75 AD3d 641 [2d Dept 2010]; Matter of Jacob v Winch, 121 AD2d 446 [2d Dept 1986]). Upon such submissions, Supreme Court shall determine whether the failure to provide petitioner with the written statement was harmless error.

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

ENTERED: APRIL 23, 2013

CLERK